BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 02/12/2010 Coram The Honourable Mr.Justice V.RAMASUBRAMANIAN CIVIL REVISION PETITION (PD) (MD) NO.745 OF 2010 & MP.NO.1 OF 2010 Mr.K.Santhanam ...Petitioner Vs Ms.S.Kavitha through her sub.power agent Mr.K.Seerappan through her power agents 1.Mr.P.Chinniah 2.Mr.C.Duraisamy ...Respondents PETITION under Article 227 of The Constitution of India against the fair and decretal orders dated 17.12.2009 made in IA.No.226 of 2007 in OS.No.48 of 2005 on the file of the Principal District Court, Dindigul. !For Petitioner ... Mr.G.R.Swaminathan ^For Respondents ... Mr.Kadarkarai for M.K.Balamurugan :ORDER
The civil revision petition arises out of an order passed by the Trial
Court allowing an application permitting the sub agents appointed by the power
agent of the plaintiff to conduct the proceedings on behalf of the plaintiff.
2. Heard Mr.G.R.Swaminathan, learned counsel for the petitioner and
Mr.Kadarkarai, learned counsel for the respondents.
3. A suit in OS.No.48 of 2005 was filed on the file of the Principal
District Court, Dindigul on behalf of one Mrs.Kavitha represented by her power
of attorney agents Mr.P.Chinniah and Mr.C.Duraisamy. The petitioner in the civil
revision petition is the sole defendant in the suit. The suit is for recovery of
a sum of Rs.7,68,800/- together with interest at 2% per month on the principal
amount of Rs.4 lakhs, said to have been borrowed by the petitioner herein
(defendant) and also for a decree for sale of the mortgaged properties, if there
was a failure, to pay the decree debt.
4. Since the suit was filed by persons claiming to be power agents, an
application was taken out in IA.NO.177 of 2004 under Order III Rule 2 of the
Civil Procedure Code. That application was allowed by the Trial Court by an
order dated 20.10.2005. Challenging the said order, the petitioner herein/
defendant filed a revision in CRP(PD)(MD)No.101 of 2007 on the file of this
Court, contending that under Section 190 of the Indian Contract Act, an agent
cannot appoint another person to perform the acts that he was directed by the
principal to perform and also on the ground that appointment of agents was not
in accordance with Order III Rule 2 of the CPC.
5. By an order dated 14.8.2007, this Court allowed the said revision
petition holding that under Order III Rule 2 (wrongly typed as Order V Rule 2 in
the order in CRP(PD)(MD)No.101 of 2007), an agent can be appointed only by means
of an instrument signed by the principal and that the principal Mrs.Kavitha
(plaintiff in the suit) had not executed any instrument appointing Mr.P.Chinniah
as power agent.
6. Thereafter, a fresh application was taken out in IA.No.226 of 2007
under Order III, Rule 2, CPC, by P.Chinniah and C.Duraisamy seeking permission
to prosecute the suit on behalf of the plaintiff, on the basis of the rectified
deed of power of attorney executed by Mrs.Kavitha on 20.11.2007. That
application was allowed by the Principal District Court, Dindigul by an order
dated 17.12.2009. Challenging the said order, the defendant in the suit has come
up with the above civil revision petition.
7. Assailing the order of the trial court, Mr.G.R.Swaminathan, learned
counsel for the petitioner raised two contentions, namely
(a) that once the order passed in the earliest application in IA.No.177 of
2004 ( filed under Order III Rule 2) was set aside by this Court in the previous
civil revision petition, the Trial Court ought to have rejected or returned the
plaint, as there was no plaint in the eye of law; and
(b) that the rectified deed of power of attorney executed on 20.11.2007
will not cure the improper presentation of the plaint in the year 2004 by
persons, who had no authority to institute the proceedings.
8. The first contention of the learned counsel for the petitioner cannot
be countenanced in view of the decision of the Apex court in Uday Shanker Triyar
Vs. Ram Kalewar Prasad Singh, 2006 (1) SCC 75. One of the questions that arose
for consideration in that case was whether the presentation of a Memorandum of
Appeal by a Vakil without any authority in the shape of a vakalatnama is a valid
presentation or not. Incidentally, the Court was also concerned with the
question whether such defect could be permitted to be rectified or not. After
comparing the provisions of Order XLI, Rule 1, CPC, Order III, Rule 4, CPC and
Order VI, Rule 14, CPC, the Supreme Court held in paragraph-16 of its decision
as follows:-
“16. An analogous provision is to be found in Order VI, Rule 14, CPC,
which requires that every pleading shall be signed by the party and his pleader,
if any. Here again, it has always been recognised that if a plaint is not signed
by the plaintiff or his duly authorised agent due to any bona fide error, the
defect can be permitted to be rectified either by the Trial Court at any time
before judgment, or even by the Appellate Court by permitting appropriate
amendment, when such defect comes to its notice during hearing.”
9. Paragraph-17 of the said decision laid down the general principles
regarding the consequences of non-compliance with the procedural requirements.
Paragraph-17 reads as follows:-
“17. Non-compliance with any procedural requirement relating to a
pleading, memorandum of appeal or application or petition for relief should not
entail automatic dismissal or rejection, unless the relevant statute or rule so
mandates. Procedural defects and irregularities which are curable should not be
allowed to defeat substantive rights or to cause injustice. Procedure, a
handmaiden to justice, should never be made a tool to deny justice or perpetuate
injustice, by any oppressive or punitive use. The well recognised exceptions to
this principle are:
(i) where the statute prescribing the procedure, also prescribes
specifically the consequence of non-compliance;
(ii) where the procedural defect is not rectified, even after it is
pointed out and due opportunity is given for rectifying it;
(iii) where the non-compliance or violation is proved to be deliberate or
mischievous;
(iv) where the rectification of defect would affect the case on merits or
will affect the jurisdiction of the Court;
(v) in case of memorandum of appeal, there is complete absence of
authority and the appeal is presented without the knowledge, consent and
authority of the appellant.”
10. In the light of the above principles, the first contention that the
plaint ought to have been rejected/returned by the trial court after the order
passed in the first civil revision, cannot be accepted. After the disposal of
the earlier civil revision petition, the plaintiff has a right to rectify the
defect in the presentation of the plaint. This right cannot be defeated by
rejecting the plaint.
11. In so far as the second contention is concerned, a detailed enquiry
into the question as to whether there was proper presentation or not and whether
the defect was curable or not, is necessary. Therefore, let me now undertake a
journey into the relevant provisions of the CPC.
12. Section 26(1) of the CPC, as amended by Act 46 of 1999 with effect
from 1.7.2002, prescribes that ‘every suit shall be instituted by the
presentation of a plaint or in such other manner as may be prescribed’. While
Order I, CPC deals with the ‘parties to suits’, Order II, deals with the ‘frame
of suit’. Order III, CPC, deals with ‘recognised agents and pleaders’. Rule 1 of
Order III, enables a party to a suit, to appear, apply and act, either as party
in person or by his recognised agent or by a pleader. The recognised agents, who
are so entitled to appear, apply and act, are listed out under Rule 2 of Order
III, which reads as follows :
“2. Recognised agents:–The recognised agents of parties by whom such
appearances, applications and acts may be made or done are —
(a) persons holding powers of attorney, authorising them to make and do
such appearances, applications and acts on behalf of such parties;
(b) persons carrying on trade or business for and in the names of parties
not resident within the local limits of the jurisdiction of the Court within
which limits the appearance, application or act is made or done, in matters
connected with such trade or business only, where no other agent is expressly
authorised to make or do such appearances, applications and acts.”
The High Court Amendment (Madras) to Order III Rule 2, reads as follows :
“2. The recognised agents of parties by whom such appearances,
applications and acts may be made or done are the persons holding powers of
attorney, authorising them to make and do such appearances, applications and
acts on behalf of parties. (Amendment dated 27.6.1973).”
13. Order IV which deals with ‘institution of suits’ mandates that every
suit shall be instituted by presenting a plaint, which shall comply with the
Rules contained in Order VI and Order VII, so far as they are applicable.
14. Order VI, Rule 14 requires every pleading to be signed by the party
and his pleader, if any. The proviso to Order VI, Rule 14, which stands
independently on its own footing, apart from Order III, Rule 2, enables any
person duly authorised by a party to sign the pleading. The Rule and the proviso
read as follows :
“14. Pleading to be signed : Every pleading shall be signed by the party
and his pleader (if any) :
Provided that where a party pleading is, by reason of absence or for other
good cause, unable to sign the pleading, it may be signed by any person duly
authorised by him to sign the same or to sue or defend on his behalf.”
15. Order VI, Rule 15, which deals with ‘verification of pleadings’,
enables any person acquainted with the facts of the case to verify the
pleadings. Order VI, Rule 15(1), reads as follows : –
“15. Verification of pleadings :- (1) Save as otherwise provided by any
law for the time being in force, every pleading shall be verified at the foot by
the party or by 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.”
16. Thus, it is seen that while Order III, enables ‘the holder of a power
of attorney’ to appear, apply and act on behalf of a party to a suit, as his
‘recognised agent’, Order VI, Rule 14, enables ‘any person duly authorised by a
party to sign the pleading’ if the party pleading is, by reason of absence or
for other good cause, unable to sign the pleading. Thus, it appears from Order
VI, Rule 14, that even in the absence of a power of attorney, a party to a suit
is entitled to have the pleading signed on his behalf, by any person duly
authorised by him to sign. This inference is inevitable on account of the
difference in the expressions used in Order III, Rule 2, vis-a-vis Order VI,
Rule 14. While Order III, Rule 2, uses the expressions “recognised agents” and
“persons holding powers of attorney”, Order VI, Rule 14, uses the phrase ‘any
person duly authorised by him”. Rule 15(1) of the Order VI, goes one step
further and empowers “some other person” to verify the pleadings, if it is
proved to the satisfaction of the Court that he is acquainted with the facts of
the case.
17. It is well settled that a defective presentation of a plaint, cannot
result in the rejection of the plaint. The grounds on which a plaint can be
rejected are listed under Order VII, Rule 11, CPC. A defect which is curable in
nature, does not fall within the ambit of Order VII, Rule 11. This is why even
in cases where the relief claimed is under valued or where the relief is
properly valued but the plaint is insufficiently stamped, the Court is required
to call upon the plaintiff to correct the valuation and supply the requisite
stamp papers.
18. That an error of procedure is merely an irregularity, which can be
cured, is well settled by the decisions of various High Courts. One of the
earliest cases on the issue is that of the Special Bench of the Allahabad High
Court in Wall Mohammed Khan Vs. Ishak Ali Khan and Others (AIR 1931 All 307),
where it was held as follows :
“If the legislature had intended that the absence of the presentation of
the plaint by the plaintiff or by some person duly authorised by him would
altogether oust the jurisdiction of the Court the language used would have been
definite and specific. Instead of that, Section 26 merely provides that every
suit shall be instituted by the presentation of a plaint or in such other manner
as may be prescribed, without saying in express terms that the presentation
should be by the plaintiff or his duly authorised agent. As there is no specific
rule either requiring or expressly authorising the plaintiff to present the
plaint it is doubtful whether Order III, Rule 1 of the Code would apply to such
a case. If it does not apply, the presentation by a person orally authorised to
do so would be valid. But even if it does we are clearly of opinion that the
omission to comply with this provision would be a mere irregularity and not an
absence of jurisdiction. The Court receiving a plaint which has not been
properly presented would have jurisdiction to dismiss it and pass orders on it.
It would not be acting without jurisdiction if it did so. We do not mean to
imply that a plaintiff has the right to get his plaint presented by a man in the
street. If the person presenting it was not properly authorised, the
presentation would be irregular. The Court would then have the discretion to
allow the irregularity to be cured or not. If the plaintiff has acted in good
faith and without gross negligence and it is fair and just to allow the defect
to be cured, the Court would undoubtedly do so. It is not absolutely helpless in
the matter.”
19. A Division Bench of the Bombay High Court had an occasion to consider
the same issue, with particular reference to a suit instituted by a company
incorporated under the Companies Act. In paragraph 13 of its judgment in All
India Reporter Ltd. Vs. Ramchandra (AIR 1961 Bombay 292), the Bombay High Court
held as follows :
“13. The question is whether the provisions contained in Order VI
relating to signing, verification and presentation of the plaint relate merely
to procedure or whether a plaint which does not strictly comply with the
requirements of Order VI would cease to be a valid plaint and would be a nullity
because of such defects or irregularities. It is true that when a plaint is
presented to the Court or to such Officer as the Court appoints, it is open to
the Court or to the Officer to point out the defects or irregularities to the
person presenting the suit and to require him to rectify the defects or
irregularities. But can it be said that the defects or irregularities would
make the presentation of the suit itself invalid although the plaint is
admitted and particulars of the plaint are entered in a register of suits as
provided by Order IV, Rule 2? In this connection, it is necessary to note that
Order VII, Rule 11, which refers to the rejection of a plaint, enumerates only
four cases in which a plaint has to be rejected, but it does not enumerate any
of the defects or irregularities referred to in Order VI, Rule 14, Order VI,
Rule 15, or Order VI, Rule 2. It is clear from the provision contained in Order
VI that these rules relate only to procedure, and the better view would be to
regard them as mere matters of procedure and to hold that if a plaint is not
properly signed or verified but is admitted and entered in the register of suits
it does not cease to be a plaint and the suit cannot be said not to have been
instituted merely because of the existence of some defects or irregularities in
the matter of signing and verification of the plaint.”
In paragraph 20 of the same judgment, the Bombay High Court held as follows :
“20…………………..In the case of companies the plaint can be
signed by either a Secretary or a Director or other Principal Officer under
Order XXIX, Rule 1, Civil Procedure Code, or any person duly authorised by the
company under Order VI, Rule 14. The words ‘duly authorised’ in Order VI, Rule
14, need not be restricted to mean authorised by proper written authority or by
power of attorney. There is authority for this view in Bengal Jute Mills Vs
Jewraj Heeralal AIR 1943 Cal 13, AIR 1948 Mad 369, ILR 1939 Nag 515 : (AIR 1939
Nag 242) and AIR 1941 Nag 159. In these cases it was held that a plaintiff can
orally authorise another person to sign a plaint for him. The Managing Director
of the plaintiff company in the instant case, who has authority to file suits on
behalf of the company (vide Article 156 of the Company’s Articles of
Association), can orally authorise another person to sign the plaint for him on
behalf of the company. Plaintiff NO.2, who is the Managing Director of the
company (plaintiff NO.1), has in his deposition deposed that Ghushey signed the
plaint under his instructions. The evidence of Ghushey is to be same effect.”
20. Even in a case where a sale deed was executed on the strength of a
power of attorney, which was not authenticated, the Supreme Court held in Jugraj
Vs. Jaswantsingh (AIR 1971 SC 761) that though the first deed of power of
attorney was not authenticated, the second deed of power of attorney which was
duly authenticated, ratified and validated the transaction entered into by the
agent in pursuance of the unauthenticated first deed of power of attorney. Thus,
law is well settled that it was always open to the Principal to ratify the act
of the agent by producing an authenticated power of attorney.
21. Rules 16 and 17 of the Civil Rules of Practice prescribe a procedure
to be followed for signing and verifying the pleading in any proceeding. Rules
and 16 and 17 read as follows :
“16. Party appearing by agent : – (1) When a party appears by an agent
other than a pleader or advocate, the agent shall before making or doing any
appearance, application, or act, in or to the Court, file in Court the power of
attorney, or written authority, thereunto authorising him, or a properly
authenticated copy thereof/ or, in the case of an agent carrying on a trade or
business on behalf of a party, without a written authority, an affidavit stating
the residence of his principal, the trade or business carried on by the agent on
his behalf and the connection of the same with the subject matter of the suit
and that no other agent is expressly authorised to make or do such appearance,
application or act.
(2) The Judge may thereupon record in writing that the agent, is
permitted to appear and act on behalf of the party, and unless and until the
said permission is granted no appearance, application or act, of the agent shall
be recognised by the Court.”
17. Signing or verification by agent : If any proceeding, which, under
any provision of law or these rules is required to be signed or verified by a
party, is signed or verified by any person on his behalf a written authority in
this behalf signed by the party shall be filed in Court, together with an
affidavit verifying the signature of the party, and stating the reason of his
inability to sign or verify the proceedings and proving the means of knowledge
of the facts set out in the proceeding of the person signing or verifying the
same.”
22. A question arose before the Kerala High Court in Narayanan Nair Vs.
John Kurien (1988 (1) K.L.T. 673) about the effect of non-compliance with the
provisions of Rule 23 of the Kerala Civil Rules of Practice, which was
identically worded as Rule 24 of Travancore Cochin Civil Rules of Practice that
was in force at the time of institution of the proceedings. It was considered by
Mr.Justice Thomas (as he then was) , with reference to the provisions of Order
VI, Rule 14, CPC. In paragraph 3, the learned Judge held as follows :
“What is meant by the expression ‘duly authorised’ in the aforesaid Rule ?
Learned counsel for the appellants contended that any authorisation without
compliance with Rule 24 of the Travancore Cochin Civil Rules of Practice (which
was in force when the suit was instituted) cannot be recognised in law as the
special rule under the Civil Rules of Practice prescribed a particular mode to
make the authorisation. (Rule 23 of the Kerala Civil Rules of Practice is
identically worded and hence reference to one of them would be sufficient). The
said rule in the Civil Rules of Practice reads as follows :
‘Signing or verification by agent :- If any proceeding, which, under any
provision of law or these rules, is required to be signed or verified by a party
is signed or verified by any other person on his behalf, a written authority in
this behalf signed by the party except in the case of persons under disability,
shall be filed in Court, with an affidavit by such person verifying the
signature of the party, and stating the reason of his inability to sign or
verify the proceeding.’
No written authority has been produced either by the plaintiff or by the
Kurian in support of the case that Kurian has been duly authorised to institute
the suit. Nor has Kurian filed an affidavit verifying the signature of the
plaintiff stating the reasons of plaintiff’s inability to sign in the plaint.
The particular rule in the Civil Rules of Practice (quoted above) applies only
to cases where proceedings are required to be signed or verified by parties
concerned. The said rule need not be imported to a case where plaint or written
statement can be signed, as sanctioned by the substantive law, by any other
person duly authorised by the party concerned. Order VI Rule 14 permits such a
course to be adopted in making the pleadings. The scope of Order VI Rule 14 is
not to be curtailed or restricted by unduly reading of Civil Rules of Practice
into it. Nor could the sanction offered by the substantive law be stultified by
resort to the rules framed under such law. The proviso in Rule 14 (of Order VI)
does not insist on production or even creation of a power of attorney or written
authorisation. There is nothing in the said provision suggesting that a written
authorisation is indispensable for the proper compliance thereof. Case law seems
to be very much in support of the view that even oral authorisation would be
sufficient to constitute due authorisation. (Vide Bengal Jute Mills Vs. Jewraj
Heeralal, AIR 1943 Calcutta 13; Subbiah Pillai Vs. Sankarapandiam Pillai, AIR
1948 Madras (Vol.35) 369; Sarju Prasad Vs. Badri Prasad, AIR 1939 Nag.242; and
Netram Vs. Bhagwan, AIR 1941 Nag.159). Those decisions were referred to and
discussed in detail by a Division Bench of the Bombay High Court in All India
Reporter Ltd. Vs. Ramachandra (AIR 1961 Bombay 292). The Bombay High Court, in
concurrence with the preponderant view held that oral authorisation is good
enough to constitute a valid authorisation under Order VI Rule 14 of the Code.
In Iyakku Mathoo Vs. Julius (AIR 1962 Kerala 19) absence of a written authority
was considered to be a defect in constituting due authorisation, but the said
decision can be distinguished on facts since the suit was instituted on behalf
of a plaintiff residing abroad permanently. Raman Nayar,J (as he then was) has
observed in the said decision that in such cases the proviso to Order VI Rule 14
does not apply. The upshot of the discussion is that there is compliance with
the requirements in Order VI Rule 14 of the Code if there is satisfactory
material to show that the signatory in the plaint had the authority of the
plaintiff to sign the plaint on behalf of the plaintiff and such authority need
not necessarily be in writing.”
23. It may be seen from Rule 23 of the Kerala Civil Rules of Practice
extracted in the aforesaid judgment of the Kerala High Court that it is in pari
materia with Rule 17 of the Madras Civil Rules of Practice. It may also be seen
that the Kerala High Court referred to the judgment of the Bombay High Court in
All India Reporter Ltd. Vs. Ramachandra, while coming to the conclusion that it
did.
24. In Subbiah Pillai Vs. Sankarapandiam Pillai, 1948 (I) MLJ 227, a suit
was instituted by three brothers, one of whom held a power of attorney from the
other two. The defendant questioned the maintainability of the suit on the
ground that the power of attorney did not authorise the third plaintiff to
institute suits on behalf of the other two. Referring to Order VI, Rule 14, CPC,
and to the decisions of the Judicial Committee and the Allahabad High Court, a
Division Bench of this Court held as follows :
“At the highest there was a failure to follow the strict provisions of the
Code of Civil Procedure. Order VI, Rule 14 provides that every pleading shall be
signed by the party and his pleader if any, provided that, where a party
pleading is, by reason of absence or for other good cause, unable to sign the
pleading, it may be signed by any person duly authorised by him to sign the same
or to sue or defend on his behalf. That provision corresponds to the provisions
of Section 578 of the Code of 1882.
In Mohinimohan Das Vs. Bungsi Budhah Saha Das, (1889) ILR 17 Cal.580, one
of the three plaintiffs had not signed the plaint. In reference to that omission
their Lordships of the Judicial Committee observed at page 582 of the report as
follows :
‘In the first place it was said that the plaints were signed and verified
by Mohini Mohan alone. But that is immaterial. There is 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.’
Later at page 583 it is observed, further, that,
‘Their Lordships think that Khatter Mohun, as well as Gobind Rani became a
party, as plaintiff, on the 2nd November, 1883, and that the suits therefore are
not barred by lapse of time.’
Basdeo Vs. John Smidt, (1899) ILR 22 All.55, is a decision to a like effect
where it was held that a defect in the signature of the plaint or the absence of
signature, where it appears that the suit was in fact filed with the knowledge
and by the authority of the plaintiff’ named therein, may be cured by amendment
at any stage of the suit and is not a ground for interference, in appeal. Those
two decisions were given at the time when the Code of 1882 was in force. In
Basdeo’s case, reference is made to Section 578 of the old Code which
corresponds to Section 99 of the Code of 1908. That section enacts that no
decree shall be reversed or substantially varied, nor shall any case be
remanded, in appeal on account of any misjoinder of parties or causes of action
or any error, defect or irregularity in any proceedings in the suit, not
affecting the merits of the case or the jurisdiction of the Court. The result of
the above decisions by the Judicial Committee and the High Court of Allahabad is
that where a plaintiff has not signed a plaint, filed with his knowledge and
consent, it is an omission which can be cured, and, indeed, should be corrected
in the interests of justice. Regarding Order VI, Rule 14 of the Code, the
commentary in the late Sir Dinshah Fardunji Mulla’s work on the Code of Civil
Procedure refers to the two cases cited above and then adds this :
‘If the defect is not discovered until the case comes on for hearing
before an Appellate Court, the Appellate Court may order the amendment to be
made in that Court. The Appellate Court ought not to dismiss the suit or
interfere with the decree of the Lower Court merely because the plaint has not
been signed. The omission to sign or verify a plaint is not such a defect as
could affect the merits of a case or the jurisdiction of the Court.’
With respect i subscribe fully to the observations in Sir Dinshah Fardunji
Mulla’s book.”
25. The above decision in Subbiah Pillai was quoted with approval by
another Division Bench of this Court in M.C.S.Rajan Vs. National Nail
Industries, 1975 II MLJ 490. While doing so, the Division Bench pointed out
that “under Sections 196 and 199 of the Indian Contract Act, an act done by one
person on behalf of another but without his knowledge or authority, may be
ratified by that other and if that other so elects to ratify, the same effect
will follow as if the act was performed by the other”. The Bench also referred
to Section 199 of the Contract Act, which says that ‘a person ratifying any
authorised act done on his behalf ratifies the whole of the transaction of
which such act formed a part’.
26. The Division Bench decision in M.C.S.Rajan, arose out of a suit, in
which, the plaint was signed and verified and presented by the Manager of a sole
proprietary concern, without an express authorisation in that behalf. The Trial
Court held the suit as not maintainable since the Manager had not produced the
power of attorney on the day when he signed the pleading. The Trial Judge did
not even accept the power of attorney later produced, on the ground that it was
produced belatedly, despite the fact that it contained a ratification. Though
the Division Bench referred to Order XXX, Rule 10 and pointed out that there is
no provision in the CPC, for suits filed by persons carrying on business in a
name other than his own, the Bench took the view that the regularity of such
suits had to be tested on common law principles. It is in that context that the
Bench referred to Order VI, Rule 14 as well as to the Division Bench decision in
Subbiah Pillai and ultimately held the suit as maintainable.
27. In Union Bank of India Vs. Naresh Kumar, AIR 1997 SC 3, the suit filed
by the Union Bank of India was dismissed on the ground that the plaint was not
duly signed and verified by a competent person. Though other issues were found
in favour of the bank, the suit was dismissed by 3 courts namely, the Trial
Court, the First Appellate Court and the High Court on this short ground and the
bank filed an appeal before the Supreme Court. The decisions of all the three
Courts were reversed by the Supreme Court and the suit filed by the bank was
decreed. Though the decision of the Court primarily revolved around public
interest and Order XXIX, Rule 1, CPC, the Supreme Court went to the extent of
holding, in paragraph 10 of its decision, that “by virtue of Order VI, Rule 14,
together with Order XXIX, Rule 1 of the Code of Civil Procedure, the signing and
verification of the plaint, by a person holding an office, could be accepted,
even in the absence of any formal letter of authority or power of attorney”.
28. In Sugesan and Co.Pvt.Ltd. Vs. Pachayappa’s Trust, 1998 (2) CTC 572,
another Division Bench of this Court expressed the same view, following the
decision of the Division Bench in M.C.S.Rajan and the decision of the Apex Court
in Union Bank of India.
29. Keeping in mind the consistent views expressed by this Court and
various other Courts as well as the Supreme Court, let me now turn to the facts
of this case. It is no doubt true that the Deed of Power of Attorney with which
the suit was originally instituted, was executed by one Mr.A.K.Seerappan, the
father and power agent of the plaintiff, in favour of his sub agents Chinniah
and Duraiswamy. Since the order of the Trial Court, allowing I.A.No.177 of 2004,
permitting Chinniah and Duraiswamy to prosecute the suit on behalf of the
plaintiff was reversed by this Court in the previous civil revision petition,
the plaintiff Kavitha executed a fresh Deed of Power of Attorney dated
20.11.2007, not only appointing P.Chinniah and C.Duraiswamy, but also ratifying
all acts done by them, including the filing of the suits by them. In fact, the
plaintiff had also sworn to an affidavit before the Trial Court about the
appointment of P.Chinniah and C.Duraiswamy. Therefore, the Trial Court was
justified in allowing the application I.A.No.226 of 2007 filed under Order III,
Rule 2, CPC, since the principal has specifically ratified the acts done by
P.Chinniah and C.Duraiswamy.
30. In view of the above, I find no merits in the Civil Revision Petition
and hence it is dismissed. There will be no order as to costs. Consequently,
connected miscellaneous petition is also dismissed.
Svn
To
The Principal District Court,
Dindigul.