Civil P.C. (5 of 1908), O.6, R.14 and R.17 - PLEADINGS - AMENDMENT - Plaint signed by person not properly authorised - Amendment - Plaintiff can be allowed to sign even after limitation.
A plaint signed by the son of the plaintiff who had no proper authority to sign it on behalf of the plaintiff can be allowed to be amended at a later stage by allowing the plaintiff to sign irrespective of the bar of limitation, inasmuch as the defect is merely formal.
High Court of Bombay
Dahyabhai Girdhardas v. Bobaji Dahyaji Kotwal and others
Case No.: Civil Revn. Appln. No.499 of 1951,
dated: 18/4/1952.
Citation: AIR 1944 Bom 201
Judgement
ORDER :- The suit out of which this revision application arises was filed in the Court of the
Nyayadish at Ghodasar and the plaint was signed by the plaintiff's son Vadilal Dayabhai and he was described as a kulmukhtyar. After merger the suit was transferred to the Civil Judge at Kaira. The plaintiff then applied for an amendment of the plaint by striking off the signature of his son and by being permitted to sign the plaint. The plaintiff realised that his son had no proper authority to sign the plaint and that was the reason for this application for amendment. The learned Judge dismissed the application, and it is from that order that this revision application is preferred.
2. Now, there are two decisions of this Court to which my attention has been drawn bearing on the question as to whether failure to sign the plaint properly is such a material defect that the Court would be entitled to say that in the absence of a plaint being properly signed there is no suit before the Court at all, or whether the failure to sign the plaint properly is merely a formal defect which can be cured at any stage on a proper application being made to that effect. The former view has been taken by Sir John Beaumont in Chunilal Bhagwanji v. Kanmal Lalchand, 46 Bom LR 350. In that case a person acting under a power-of-attorney executed by a next friend of a minor presented a plaint and signed it, and the learned Chief Justice held that he had no authority to do so and that the plaint was not a valid plaint. The learned Chief Justice further held that the suit was never properly instituted, and that a defect of that sort could not be cured by amendment, and the natural course open to the plaintiff was to file a fresh plaint. With respect, the learned Chief Justice did not consider an earlier decision of this Court in Nanjibhai v. Popatlal, 34 Bom LR 628. As a matter of fact no authorities whatever were cited before the learned Chief Justice.
Turning to the other judgment of this Court in Nanjibhai v. Popatlal, Mirza, J., there held that a plaint filed within time can, if not properly signed, be allowed to be signed by the plaintiff at a later stage irrespective of the bar of limitation. There the munim of the plaintiff had signed the plaint without having a general power-of-attorney and the plaint was not therefore properly signed, and the learned Judge allowed the plaint to be amended. There is a judgment of the Privy Council which also perhaps throws some light on this matter, and that is Mohini Mohum Das v. Bungsi Buddan Saha Das, 17 Cal 580 (P.C). In that case the suit was by three co-plaintiffs, and one of the points urged before the Privy Council was that the plaint was signed and verified by one plaintiff alone, and the answer given in the judgment of the Privy Council was that that was immaterial as there was no rule providing that a person named as a co-plaintiff is not to be treated as a plaintiff unless he signs and verifies the plaint. The rule requiring a plaint to be signed applies to all the plaintiffs, and if the Privy Council thought that the failure of one of the co-plaintiffs to sign the plaint was immaterial, it clearly shows that the Privy Council considered this a merely formal error and not a serious defect which went to the root of the matter and which vitiated the whole institution of the suit to such an extent that the Court must consider that the suit was not properly instituted at All If Sir John Beaumont was right in the view that he took, then the suit before the Privy Council was never instituted as far as the co-plaintiffs were concerned. Therefore, with very great respect, in my opinion the learned Chief Justice was in error in the view that he took. Ordinarily I would have been bound by his judgment as a judgment of co-ordinate authority, but there is the judgment of Mirza, J., and also the judgment of the Privy Council to which I have referred. With respect I prefer the judgment of Mirza, J., in Nanjibhai v. Popatlal.
3. I, therefore, set aside the order passed by the learned Judge below and direct that he should allow the plaintiff to amend the plaint by striking out the signature of the plaintiff's son and allowing the plaintiff to sign the plaint. No order as to costs.
Order set aside.
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