Manindra Chandra Nundy vs Velji Mulji on 19 May, 1927

Calcutta High Court
Manindra Chandra Nundy vs Velji Mulji on 19 May, 1927
Equivalent citations: AIR 1927 Cal 773
Author: Buckland


Buckland, J.

1. The Master has refused to admit this plaint on the ground, that there is no affidavit proving the fitness to verify of Mr. Edwin Greaves, the gentleman who purports to have verified it. The circumstances are these:

The plaint is in a suit by the Honourable Sir Manindra Chandra Nundy, who is stated in the cause title and in the first paragraph of the plaint to carry on business by Gillanders Arbuthnot & Co., as his managing agents. It is signed by Susil Kumar Bose, as constituted attorney of the plaintiff Maharaja. As to his authority to sign the plaint no question arises. Para. 18 says that Edwin Greaves is a Chief Assistant of the Firm of Gillanders Arbuthnot & Co. and is able to depose to the facts of the case. The verification is in the usual form and is signed “Edwin Greaves.”

2. Now this does not conform to Order 6, Rule 15, Civil P.C., which provides that
every pleading shall be verified by the party or one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.

3. Chap. 7, Rule 12, Rules of this Court provides:

Where any person other than the party pleading verifies a pleading under Order 6, Rule 15 of the Code, his fitness so to verify shall be proved by his affidavit at the time the pleading is presented.

4. I draw special attention to the use of the word “proved” in each of the rules quoted, and I also observe that the rule gives no scope for the exercise of the judge’s discretion.

5. My attention ba3 been drawn to a decision of my learned brother Mr. Justice Page in Martin & Co. v. Abdul Rahim in suit No. 1582 of 1925, where in circumstances in which the rule was not strictly complied with my learned brother held that no affidavit was necessary. That was a suit brought by a firm of the name of Martin & Co. The plaint was signed for Martin & Co. by Oswald Martin, a partner. Para. 9 of the plaint-says that it is verified by Mr. Kailash Chandra Mahendra, a principal assistant of the plaintiff firm, who is acquainted with matters and facts connected with the suit. There is a verification by that gentleman in the usual form : but it appears that his fitness so to verify was not proved by affidavit. My learned brother said that Mr. Oswald Martin instead of signing the verification himself, which of course would have been in order, took responsibility for the verification by the paragraph which I have read, and he said that in the circumstances he was satisfied that Mr, Kailash Chandra Mahendra was acquainted with the fasts of the case for the purpose of complying with Order 6, Rule 15.

6. There was in that case no proof of the fitness of Mr. Kailash Chandra Mahendra to verify, for a plaint signed by a party or his constituted attorney is not proof of what it states. For proof evidence is necessary, and the form prescribed in this instance, is an affidavit.

7. My learned brother continued that it seemed to him to be mere pedantry to say that the Court should be satisfied if Mr. Oswald Martin signed the verification, but ought not to be satisfied if the person designated by Mr. Oswald Martin as being qualified to sign the verification in fact signs it.

8. With all respect to the learned Judge, I do not agree, and I find myself unable to follow his judgment. What may appear pedantic in one case may be a matter of the highest importance in another. Rules are provided as the most suitable for general use, and where it is within the contemplation of those who are responsible for making them that circumstances may arise where they should be departed from, discretion is frequently given to the Court or Judge. But nothing of the sort is to be found here, and I am not prepared, as at present advised, to hold that any exception whatever can be made to the mandatory provisions of the rule requiring an affidavit of the fitness of the person verifying to be presented with the pleadings.

9. But even if I did not take so strict a view, I should have to point out that the two cases are not similar, for in that case a plaintiff asserted that the verifier was acquainted with the facts, whereas in this the assertion is made by the constituted attorney of the plaintiff.

10. I observe that my learned brother said that in the particular circumstances of the case the provisions of the order and rule have been complied with. It may be that he did not intend that his judgment should be treated as a precedent but my attention has been drawn to it as such, and this application is founded upon it.

11. The plaint will be returned to the attorney presenting it for compliance with the rule.

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