{"id":215021,"date":"2010-12-02T00:00:00","date_gmt":"2010-12-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mr-k-santhanam-vs-mr-p-chinniah-on-2-december-2010"},"modified":"2015-08-20T01:20:32","modified_gmt":"2015-08-19T19:50:32","slug":"mr-k-santhanam-vs-mr-p-chinniah-on-2-december-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mr-k-santhanam-vs-mr-p-chinniah-on-2-december-2010","title":{"rendered":"Mr.K.Santhanam vs Mr.P.Chinniah on 2 December, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
Mr.K.Santhanam vs Mr.P.Chinniah on 2 December, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDated: 02\/12\/2010\n\nCoram\nThe Honourable Mr.Justice V.RAMASUBRAMANIAN\n\nCIVIL REVISION PETITION (PD) (MD) NO.745 OF 2010\n&\nMP.NO.1 OF 2010\n\nMr.K.Santhanam\t\t\t\t\t...Petitioner\n\nVs\n\nMs.S.Kavitha through her sub.power\nagent Mr.K.Seerappan through her power\nagents\n\n1.Mr.P.Chinniah\n2.Mr.C.Duraisamy\t\t\t\t...Respondents\n\nPETITION under Article 227 of The Constitution of India against the fair\nand decretal orders dated 17.12.2009 made in IA.No.226 of 2007 in OS.No.48 of\n2005 on the file of the Principal District Court, Dindigul.\n\n!For Petitioner \t... Mr.G.R.Swaminathan\n^For Respondents\t... Mr.Kadarkarai for M.K.Balamurugan\n\n:ORDER\n<\/pre>\n
\tThe civil revision petition arises out of an order passed by the Trial
\nCourt allowing an application permitting the sub agents appointed by the power
\nagent of the plaintiff to conduct the proceedings on behalf of the plaintiff.\n<\/p>\n
\t2. Heard Mr.G.R.Swaminathan, learned counsel for the petitioner and
\nMr.Kadarkarai, learned counsel for the respondents.\n<\/p>\n
\t3. A suit in OS.No.48 of 2005 was filed on the file of the Principal
\nDistrict Court, Dindigul on behalf of one Mrs.Kavitha represented by her power
\nof attorney agents Mr.P.Chinniah and Mr.C.Duraisamy. The petitioner in the civil
\nrevision petition is the sole defendant in the suit. The suit is for recovery of
\na sum of Rs.7,68,800\/- together with interest at 2% per month on the principal
\namount of Rs.4 lakhs, said to have been borrowed by the petitioner herein
\n(defendant) and also for a decree for sale of the mortgaged properties, if there
\nwas a failure, to pay the decree debt.\n<\/p>\n
\t4. Since the suit was filed by persons claiming to be power agents, an
\napplication was taken out in IA.NO.177 of 2004 under Order III Rule 2 of the
\nCivil Procedure Code. That application was allowed by the Trial Court by an
\norder dated 20.10.2005. Challenging the said order, the petitioner herein\/
\ndefendant filed a revision in CRP(PD)(MD)No.101 of 2007 on the file of this
\nCourt, contending that under Section 190 of the Indian Contract Act, an agent
\ncannot appoint another person to perform the acts that he was directed by the
\nprincipal to perform and also on the ground that appointment of agents was not
\nin accordance with Order III Rule 2 of the CPC.\n<\/p>\n
\t5. By an order dated 14.8.2007, this Court allowed the said revision
\npetition holding that under Order III Rule 2 (wrongly typed as Order V Rule 2 in
\nthe order in CRP(PD)(MD)No.101 of 2007), an agent can be appointed only by means
\nof an instrument signed by the principal and that the principal Mrs.Kavitha
\n(plaintiff in the suit) had not executed any instrument appointing Mr.P.Chinniah
\nas power agent.\n<\/p>\n
\t6. Thereafter, a fresh application was taken out in IA.No.226 of 2007
\nunder Order III, Rule 2, CPC, by P.Chinniah and C.Duraisamy seeking permission
\nto prosecute the suit on behalf of the plaintiff, on the basis of the rectified
\ndeed of power of attorney executed by Mrs.Kavitha on 20.11.2007. That
\napplication was allowed by the Principal District Court, Dindigul by an order
\ndated 17.12.2009. Challenging the said order, the defendant in the suit has come
\nup with the above civil revision petition.\n<\/p>\n
\t7. Assailing the order of the trial court, Mr.G.R.Swaminathan, learned
\ncounsel for the petitioner raised two contentions, namely\n<\/p>\n
\t(a) that once the order passed in the earliest application in IA.No.177 of
\n2004 ( filed under Order III Rule 2) was set aside by this Court in the previous
\ncivil revision petition, the Trial Court ought to have rejected or returned the
\nplaint, as there was no plaint in the eye of law; and\n<\/p>\n
\t(b) that the rectified deed of power of attorney executed on 20.11.2007
\nwill not cure the improper presentation of the plaint in the year 2004 by
\npersons, who had no authority to institute the proceedings.\n<\/p>\n
\t8. The first contention of the learned counsel for the petitioner cannot
\nbe countenanced in view of the decision of the Apex court in Uday Shanker Triyar
\nVs. Ram Kalewar Prasad Singh, 2006 (1) SCC 75. One of the questions that arose
\nfor consideration in that case was whether the presentation of a Memorandum of
\nAppeal by a Vakil without any authority in the shape of a vakalatnama is a valid
\npresentation or not. Incidentally, the Court was also concerned with the
\nquestion whether such defect could be permitted to be rectified or not. After
\ncomparing the provisions of Order XLI, Rule 1, CPC, Order III, Rule 4, CPC and
\nOrder VI, Rule 14, CPC, the Supreme Court held in paragraph-16 of its decision
\nas follows:-\n<\/p>\n
\t“16. An analogous provision is to be found in Order VI, Rule 14, CPC,
\nwhich requires that every pleading shall be signed by the party and his pleader,
\nif any. Here again, it has always been recognised that if a plaint is not signed
\nby the plaintiff or his duly authorised agent due to any bona fide error, the
\ndefect can be permitted to be rectified either by the Trial Court at any time
\nbefore judgment, or even by the Appellate Court by permitting appropriate
\namendment, when such defect comes to its notice during hearing.”\n<\/p>\n
\t9. Paragraph-17 of the said decision laid down the general principles
\nregarding the consequences of non-compliance with the procedural requirements.
\nParagraph-17 reads as follows:-\n<\/p>\n
\t“17. Non-compliance with any procedural requirement relating to a
\npleading, memorandum of appeal or application or petition for relief should not
\nentail automatic dismissal or rejection, unless the relevant statute or rule so
\nmandates. Procedural defects and irregularities which are curable should not be
\nallowed to defeat substantive rights or to cause injustice. Procedure, a
\nhandmaiden to justice, should never be made a tool to deny justice or perpetuate
\ninjustice, by any oppressive or punitive use. The well recognised exceptions to
\nthis principle are:\n<\/p>\n
\t(i) where the statute prescribing the procedure, also prescribes
\nspecifically the consequence of non-compliance;\n<\/p>\n
\t(ii) where the procedural defect is not rectified, even after it is
\npointed out and due opportunity is given for rectifying it;\n<\/p>\n
\t(iii) where the non-compliance or violation is proved to be deliberate or
\nmischievous;\n<\/p>\n
\t(iv) where the rectification of defect would affect the case on merits or
\nwill affect the jurisdiction of the Court;\n<\/p>\n
       (v) in case of memorandum of appeal, there is complete absence of
\nauthority and the appeal is presented without the knowledge, consent and
\nauthority of the appellant.”\n<\/p>\n
\t10. In the light of the above principles, the first contention that the
\nplaint ought to have been rejected\/returned by the trial court after the order
\npassed in the first civil revision, cannot be accepted. After the disposal of
\nthe earlier civil revision petition, the plaintiff has a right to rectify the
\ndefect in the presentation of the plaint. This right cannot be defeated by
\nrejecting the plaint.\n<\/p>\n
\t11. In so far as the second contention is concerned, a detailed enquiry
\ninto the question as to whether there was proper presentation or not and whether
\nthe defect was curable or not, is necessary. Therefore, let me now undertake a
\njourney into the relevant provisions of the CPC.\n<\/p>\n
\t12. Section 26(1) of the CPC, as amended by Act 46 of 1999 with effect
\nfrom 1.7.2002, prescribes that ‘every suit shall be instituted by the
\npresentation of a plaint or in such other manner as may be prescribed’. While
\nOrder I, CPC deals with the ‘parties to suits’, Order II, deals with the ‘frame
\nof suit’. Order III, CPC, deals with ‘recognised agents and pleaders’. Rule 1 of
\nOrder III, enables a party to a suit, to appear, apply and act, either as party
\nin person or by his recognised agent or by a pleader. The recognised agents, who
\nare so entitled to appear, apply and act, are listed out under Rule 2 of Order
\nIII, which reads as follows :\n<\/p>\n
\t“2. Recognised agents:–The recognised agents of parties by whom such
\nappearances, applications and acts may be made or done are —\n<\/p>\n
\t(a) persons holding powers of attorney, authorising them to make and do
\nsuch appearances, applications and acts on behalf of such parties;\n<\/p>\n
\t(b) persons carrying on trade or business for and in the names of parties
\nnot resident within the local limits of the jurisdiction of the Court within
\nwhich limits the appearance, application or act is made or done, in matters
\nconnected with such trade or business only, where no other agent is expressly
\nauthorised to make or do such appearances, applications and acts.”
\nThe High Court Amendment (Madras) to Order III Rule 2, reads as follows :
\n\t“2. The recognised agents of parties by whom such appearances,
\napplications and acts may be made or done are the persons holding powers of
\nattorney, authorising them to make and do such appearances, applications and
\nacts on behalf of parties. (Amendment dated 27.6.1973).”\n<\/p>\n
\t13. Order IV which deals with ‘institution of suits’ mandates that every
\nsuit shall be instituted by presenting a plaint, which shall comply with the
\nRules contained in Order VI and Order VII, so far as they are applicable.\n<\/p>\n
\t14. Order VI, Rule 14 requires every pleading to be signed by the party
\nand his pleader, if any. The proviso to Order VI, Rule 14, which stands
\nindependently on its own footing, apart from Order III, Rule 2, enables any
\nperson duly authorised by a party to sign the pleading. The Rule and the proviso
\nread as follows :\n<\/p>\n
\t“14.\tPleading to be signed : Every pleading shall be signed by the party
\nand his pleader (if any) :\n<\/p>\n
\tProvided that where a party pleading is, by reason of absence or for other
\ngood cause, unable to sign the pleading, it may be signed by any person duly
\nauthorised by him to sign the same or to sue or defend on his behalf.”\n<\/p>\n
\t15. Order VI, Rule 15, which deals with ‘verification of pleadings’,
\nenables any person acquainted with the facts of the case to verify the
\npleadings. Order VI, Rule 15(1), reads as follows : –\n<\/p>\n
\t“15.\tVerification of  pleadings :- (1) Save as otherwise provided by any
\nlaw for the time being in force, every pleading shall be verified at the foot by
\nthe party or by one of the parties pleading or by some other person proved to
\nthe satisfaction of the Court to be acquainted with the facts of the case.”\n<\/p>\n
\t16. Thus, it is seen that while Order III, enables ‘the holder of a power
\nof attorney’ to appear, apply and act on behalf of a party to a suit, as his
\n‘recognised agent’, Order VI, Rule 14, enables ‘any person duly authorised by a
\nparty to sign the pleading’ if the party pleading is, by reason of absence or
\nfor other good cause, unable to sign the pleading. Thus, it appears from Order
\nVI, Rule 14, that even in the absence of a power of attorney, a party to a suit
\nis entitled to have the pleading signed on his behalf, by any person duly
\nauthorised by him to sign. This inference is inevitable on account of the
\ndifference in the expressions used in Order III, Rule 2, vis-a-vis Order VI,
\nRule 14. While Order III, Rule 2, uses the expressions “recognised agents” and
\n“persons holding powers of attorney”, Order VI, Rule 14, uses the phrase ‘any
\nperson duly authorised by him”. Rule 15(1) of the Order VI, goes one step
\nfurther and empowers “some other person” to verify the pleadings, if it is
\nproved to the satisfaction of the Court that he is acquainted with  the facts of
\nthe case.\n<\/p>\n
\t17. It is well settled that a defective presentation of a plaint, cannot
\nresult in the rejection of the plaint. The grounds on which a plaint can be
\nrejected are listed under Order VII, Rule 11, CPC. A defect which is curable in
\nnature, does not fall within the ambit of Order VII, Rule 11. This is why even
\nin cases where the relief claimed is under valued or where the relief is
\nproperly valued but the plaint is insufficiently stamped, the Court is required
\nto call upon the plaintiff to correct the valuation and supply the requisite
\nstamp papers.\n<\/p>\n
\t18. That an error of procedure is merely an irregularity, which can be
\ncured, is well settled by the decisions of various High Courts. One of the
\nearliest cases on the issue is that of the Special Bench of the Allahabad High
\nCourt in Wall Mohammed Khan Vs. Ishak Ali Khan and Others (AIR 1931 All 307),
\nwhere it was held as follows :\n<\/p>\n
\t“If the legislature had intended that the absence of the presentation of
\nthe plaint by the plaintiff or by some person duly authorised by him would
\naltogether oust the jurisdiction of the Court the language used would have been
\ndefinite and specific. Instead of that, Section 26 merely provides that every
\nsuit shall be instituted by the presentation of a plaint or in such other manner
\nas may be prescribed, without saying in express terms that the presentation
\nshould be by the plaintiff or his duly authorised agent. As there is no specific
\nrule either requiring or expressly authorising the plaintiff to present the
\nplaint it is doubtful whether Order III, Rule 1 of the Code would apply to such
\na case. If it does not apply, the presentation by a person orally authorised to
\ndo so would be valid. But even if it does we are clearly of opinion that the
\nomission to comply with this provision would be a mere irregularity and not an
\nabsence of jurisdiction. The Court receiving a plaint which has not been
\nproperly presented would have jurisdiction to dismiss it and pass orders on it.
\nIt would not be acting without jurisdiction if it did so. We do not mean to
\nimply that a plaintiff has the right to get his plaint presented by a man in the
\nstreet. If the person presenting it was not properly authorised, the
\npresentation would be irregular. The Court would then have the discretion to
\nallow the irregularity to be cured or not. If the plaintiff has acted in good
\nfaith and without gross negligence and it is fair and just to allow the defect
\nto be cured, the Court would undoubtedly do so. It is not absolutely helpless in
\nthe matter.”\n<\/p>\n
\t19. A Division Bench of the Bombay High Court had an occasion to consider
\nthe same issue, with particular reference to a suit instituted by a company
\nincorporated under the Companies Act. In paragraph 13 of its judgment in All
\nIndia Reporter Ltd. Vs. Ramchandra (AIR 1961 Bombay 292), the Bombay High Court
\nheld as follows :\n<\/p>\n
\t“13.\tThe question is whether the provisions contained in Order VI
\nrelating to signing, verification and presentation of the plaint relate merely
\nto procedure or whether a plaint which does not strictly comply with the
\nrequirements of Order VI would cease to be a valid plaint and would be a nullity
\nbecause of such defects or irregularities. It is true that when a plaint is
\npresented to the Court or to such Officer as the Court appoints, it is open to
\nthe Court or to the Officer to point out the defects or irregularities to the
\nperson presenting the suit and to require him to rectify the defects or
\nirregularities. But can it be said that the defects or irregularities would
\nmake the presentation of the suit itself  invalid although the plaint is
\nadmitted and particulars of the plaint are entered in a register of suits as
\nprovided by Order IV, Rule 2? In this connection, it is necessary to note that
\nOrder VII, Rule 11, which refers to the rejection of a plaint, enumerates only
\nfour cases in which a plaint has to be rejected, but it does not enumerate any
\nof the defects or irregularities referred to in Order VI, Rule 14, Order VI,
\nRule 15, or Order VI, Rule 2. It is clear from the provision contained in Order
\nVI that these rules relate only to procedure, and the better view would be to
\nregard them as mere matters of procedure and to hold that if a plaint is not
\nproperly signed or verified but is admitted and entered in the register of suits
\nit does not cease to be a plaint and the suit cannot be said not to have been
\ninstituted merely because of the existence of some defects or irregularities in
\nthe matter of signing and verification of the plaint.”\n<\/p>\n
In paragraph 20 of the same judgment, the Bombay High Court held as follows :
\n\t“20…………………..In the case of companies the plaint can be
\nsigned by either a Secretary or a Director or other Principal Officer under
\nOrder XXIX, Rule 1, Civil Procedure Code, or any person duly authorised by the
\ncompany under Order VI, Rule 14. The words ‘duly authorised’ in Order VI, Rule
\n14, need not be restricted to mean authorised by proper written authority or by
\npower of attorney. There is authority for this view in Bengal Jute Mills Vs
\nJewraj Heeralal AIR 1943 Cal 13, AIR 1948 Mad 369, ILR 1939 Nag 515 : (AIR 1939
\nNag 242) and AIR 1941 Nag 159. In these cases it was held that a plaintiff can
\norally authorise another person to sign a plaint for him. The Managing Director
\nof the plaintiff company in the instant case, who has authority to file suits on
\nbehalf of the company (vide Article 156 of the Company’s Articles of
\nAssociation), can orally authorise another person to sign the plaint for him on
\nbehalf of the company. Plaintiff NO.2, who is the Managing Director of the
\ncompany (plaintiff NO.1), has in his deposition deposed that Ghushey signed the
\nplaint under his instructions. The evidence of Ghushey is to be same effect.”\n<\/p>\n
\t20. Even in a case where a sale deed was executed on the strength of a
\npower of attorney, which was not authenticated, the Supreme Court held in Jugraj
\nVs. Jaswantsingh (AIR 1971 SC 761) that though the first deed of power of
\nattorney was not authenticated, the second deed of power of attorney which was
\nduly authenticated, ratified and validated the transaction entered into by the
\nagent in pursuance of the unauthenticated first deed of power of attorney. Thus,
\nlaw is well settled that it was always open to the Principal to ratify the act
\nof the agent by producing an authenticated power of attorney.\n<\/p>\n
\t21. Rules 16 and 17 of the Civil Rules of Practice prescribe a procedure
\nto be followed for signing and verifying the pleading in any proceeding. Rules
\nand 16 and 17 read as follows :\n<\/p>\n
\t“16. \tParty appearing by agent : –  (1) When a party appears by an agent
\nother than a pleader or advocate, the agent shall before making or doing any
\nappearance, application, or act, in or to the Court, file in Court the power of
\nattorney, or written authority, thereunto authorising him, or a properly
\nauthenticated copy thereof\/ or, in the case of an agent carrying on a trade or
\nbusiness on behalf of a party, without a written authority, an affidavit stating
\nthe residence of his principal, the trade or business carried on by the agent on
\nhis behalf and the connection of the same with the subject matter of the suit
\nand that no other agent is expressly authorised to make or do such appearance,
\napplication or act.\n<\/p>\n
\t(2)\tThe Judge may thereupon record in writing that the agent, is
\npermitted to appear and act on behalf of the party, and unless and until the
\nsaid permission is granted no appearance, application or act, of the agent shall
\nbe recognised by the Court.”\n<\/p>\n
\t17.\tSigning or verification by agent : If any proceeding, which, under
\nany provision of law or these rules is required to be signed or verified by a
\nparty, is signed or verified by any person on his behalf a written authority in
\nthis behalf signed by the party shall be filed in Court, together with an
\naffidavit verifying the signature of the party, and stating the reason of his
\ninability to sign or verify the proceedings and proving the means of knowledge
\nof the facts set out in the proceeding of the person signing or verifying the
\nsame.”\n<\/p>\n
\t22. A question arose before the Kerala High Court in Narayanan Nair Vs.
\nJohn Kurien (1988 (1) K.L.T. 673) about the effect of non-compliance with the
\nprovisions of Rule 23 of the Kerala Civil Rules of Practice, which was
\nidentically worded as Rule 24 of Travancore Cochin Civil Rules of Practice that
\nwas in force at the time of institution of the proceedings. It was considered by
\nMr.Justice Thomas (as he then was) , with reference to the provisions of Order
\nVI, Rule 14, CPC. In paragraph 3, the learned Judge held as follows :
\n\t“What is meant by the expression ‘duly authorised’ in the aforesaid Rule ?
\nLearned counsel for the appellants contended that any authorisation without
\ncompliance with Rule 24 of the Travancore Cochin Civil Rules of Practice (which
\nwas in force when the suit was instituted) cannot be recognised in law as the
\nspecial rule under the Civil Rules of Practice prescribed a particular mode to
\nmake the authorisation. (Rule 23 of the Kerala Civil Rules of Practice is
\nidentically worded and hence reference to one of them would be sufficient). The
\nsaid rule in the Civil Rules of Practice reads as follows :
\n\t‘Signing or verification by agent :- If any proceeding, which, under any
\nprovision of law or these rules, is required to be signed or verified by a party
\nis signed or verified by any other person on his behalf, a written authority in
\nthis behalf signed by the party except in the case of persons under disability,
\nshall be filed in Court, with an affidavit by such person verifying the
\nsignature of the party, and stating the reason of his inability to sign or
\nverify the proceeding.’
\n\tNo written authority has been produced either by the plaintiff or by the
\nKurian in support of the case that Kurian has been duly authorised to institute
\nthe suit. Nor has Kurian filed an affidavit verifying the signature of the
\nplaintiff stating the reasons of plaintiff’s inability to sign in the plaint.
\nThe particular rule in the Civil Rules of Practice (quoted above) applies only
\nto cases where proceedings are required to be signed or verified by parties
\nconcerned. The said rule need not be imported to a case where plaint or written
\nstatement can be signed, as sanctioned by the substantive law, by any other
\nperson duly authorised by the party concerned. Order VI Rule 14 permits such a
\ncourse to be adopted in making the pleadings. The scope of Order VI Rule 14 is
\nnot to be curtailed or restricted by unduly reading of Civil Rules of Practice
\ninto it. Nor could the sanction offered by the substantive law be stultified by
\nresort to the rules framed under such law. The proviso in Rule 14 (of Order VI)
\ndoes not insist on production or even creation of a power of attorney or written
\nauthorisation. There is nothing in the said provision suggesting that a written
\nauthorisation is indispensable for the proper compliance thereof. Case law seems
\nto be very much in support of the view that even oral authorisation would be
\nsufficient to constitute due authorisation. (Vide Bengal Jute Mills Vs. Jewraj
\nHeeralal, AIR 1943 Calcutta 13; Subbiah Pillai Vs. Sankarapandiam Pillai, AIR
\n1948 Madras (Vol.35) 369; Sarju Prasad Vs. Badri Prasad, AIR 1939 Nag.242; and
\nNetram Vs. Bhagwan, AIR 1941 Nag.159). Those decisions were referred to and
\ndiscussed in detail by a Division Bench of the Bombay High Court in All India
\nReporter Ltd. Vs. Ramachandra (AIR 1961 Bombay 292). The Bombay High Court, in
\nconcurrence with the preponderant view held that oral authorisation is good
\nenough to constitute a valid authorisation under Order VI Rule 14 of the Code.
\nIn Iyakku Mathoo Vs. Julius (AIR 1962 Kerala 19) absence of a written authority
\nwas considered to be a defect in constituting due authorisation, but the said
\ndecision can be distinguished on facts since the suit was instituted on behalf
\nof a plaintiff residing abroad permanently. Raman Nayar,J (as he then was) has
\nobserved in the said decision that in such cases the proviso to Order VI Rule 14
\ndoes not apply. The upshot of the discussion is that there is compliance with
\nthe requirements in Order VI Rule 14 of the Code if there is satisfactory
\nmaterial to show that the signatory in the plaint had the authority of the
\nplaintiff to sign the plaint on behalf of the plaintiff and such authority need
\nnot necessarily be in writing.”\n<\/p>\n
\t23. It may be seen from Rule 23 of the Kerala Civil Rules of Practice
\nextracted in the aforesaid judgment of the Kerala High Court that it is in pari
\nmateria with Rule 17 of the Madras Civil Rules of Practice. It may also be seen
\nthat the Kerala High Court referred to the judgment of the Bombay High Court in
\nAll India Reporter Ltd. Vs. Ramachandra, while coming to the conclusion that it
\ndid.\n<\/p>\n
\t24. In Subbiah Pillai Vs. Sankarapandiam Pillai, 1948 (I) MLJ 227, a suit
\nwas instituted by three brothers, one of whom held a power of attorney from the
\nother two. The defendant questioned the maintainability of the suit on the
\nground that the power of attorney did not authorise the third plaintiff to
\ninstitute suits on behalf of the other two. Referring to Order VI, Rule 14, CPC,
\nand to the decisions of the Judicial Committee and the Allahabad High Court, a
\nDivision Bench of this Court held as follows :\n<\/p>\n
\t“At the highest there was a failure to follow the strict provisions of the
\nCode of Civil Procedure. Order VI, Rule 14 provides that every pleading shall be
\nsigned by the party and his pleader if any, provided that, where a party
\npleading is, by reason of absence or for other good cause, unable to sign the
\npleading, it may be signed by any person duly authorised by him to sign the same
\nor to sue or defend on his behalf. That provision corresponds to the provisions
\nof Section 578 of the Code of 1882.\n<\/p>\n
\tIn Mohinimohan Das Vs. Bungsi Budhah Saha Das, (1889) ILR 17 Cal.580, one
\nof the three plaintiffs had not signed the plaint. In reference to that omission
\ntheir Lordships of the Judicial Committee observed at page 582 of the report as
\nfollows :\n<\/p>\n
\t ‘In the first place it was said that the plaints were signed and verified
\nby Mohini Mohan alone. But that is immaterial. There is no rule providing that a
\nperson named as a co-plaintiff is not to be treated as a plaintiff unless he
\nsigns and verifies the plaint.’
\n\tLater at page 583 it is observed, further, that,
\n\t‘Their Lordships think that Khatter Mohun, as well as Gobind Rani became a
\nparty, as plaintiff, on the 2nd November, 1883, and that the suits therefore are
\nnot barred by lapse of time.’
\nBasdeo Vs. John Smidt, (1899) ILR 22 All.55, is a decision to a like effect
\nwhere it was held that a defect in the signature of the plaint or the absence of
\nsignature, where it appears that the suit was in fact filed with the knowledge
\nand by the authority of the plaintiff’ named therein, may be cured by amendment
\nat any stage of the suit and is not a ground for interference, in appeal. Those
\ntwo decisions were given at the time when the Code of 1882 was in force. In
\nBasdeo’s case, reference is made to Section 578 of the old Code which
\ncorresponds to Section 99 of the Code of 1908. That section enacts that no
\ndecree shall be reversed or substantially varied, nor shall any case be
\nremanded, in appeal on account of any misjoinder of parties or causes of action
\nor any error, defect or irregularity in any proceedings in the suit, not
\naffecting the merits of the case or the jurisdiction of the Court. The result of
\nthe above decisions by the Judicial Committee and the High Court of Allahabad is
\nthat where a plaintiff has not signed a plaint, filed with his knowledge and
\nconsent, it is an omission which can be cured, and, indeed, should be corrected
\nin the interests of justice. Regarding Order VI, Rule 14 of the Code, the
\ncommentary in the late Sir Dinshah Fardunji Mulla’s work on the Code of Civil
\nProcedure refers to the two cases cited above and then adds this :
\n\t‘If the defect is not discovered until the case comes on for hearing
\nbefore an Appellate Court, the Appellate Court may order the amendment to be
\nmade in that Court. The Appellate Court ought not to dismiss the suit or
\ninterfere with the decree of the Lower Court merely because the plaint has not
\nbeen signed. The omission to sign or verify a plaint is not such a defect as
\ncould affect the merits of a case or the jurisdiction of the Court.’
\nWith respect i subscribe fully to the observations in Sir Dinshah Fardunji
\nMulla’s book.”\n<\/p>\n
\t25. The above decision in Subbiah Pillai was quoted with approval by
\nanother Division Bench of this Court in M.C.S.Rajan Vs. National Nail
\nIndustries, 1975 II MLJ 490.  While doing so, the Division Bench pointed out
\nthat “under Sections 196 and 199 of the Indian Contract Act, an act done by one
\nperson on behalf of another but without his knowledge or authority, may be
\nratified by that other and if that other so elects to ratify, the same effect
\nwill follow as if the act was performed by the other”. The Bench also referred
\nto Section 199 of the Contract Act, which says that ‘a person ratifying any
\nauthorised act done on his behalf  ratifies the whole of the transaction of
\nwhich such act formed a part’.\n<\/p>\n
\t26. The Division Bench decision in M.C.S.Rajan, arose out of a suit, in
\nwhich, the plaint was signed and verified and presented by the Manager of a sole
\nproprietary concern, without an express authorisation in that behalf. The Trial
\nCourt held the suit as not maintainable since the Manager had not produced the
\npower of attorney on the day when he signed the pleading. The Trial Judge did
\nnot even accept the power of attorney later produced, on the ground that it was
\nproduced belatedly, despite the fact that it contained a ratification. Though
\nthe Division Bench referred to Order XXX, Rule 10 and pointed out that there is
\nno provision in the CPC, for suits filed by persons carrying on business in a
\nname other than his own, the Bench took the view that the regularity of such
\nsuits had to be tested on common law principles. It is in that context that the
\nBench referred to Order VI, Rule 14 as well as to the Division Bench decision in
\nSubbiah Pillai and ultimately held the suit as maintainable.\n<\/p>\n
\t27. In Union Bank of India Vs. Naresh Kumar, AIR 1997 SC 3, the suit filed
\nby the Union Bank of India was dismissed on the ground that the plaint was not
\nduly signed and verified by a competent person. Though other issues were found
\nin favour of the bank, the suit was dismissed by 3 courts namely, the Trial
\nCourt, the First Appellate Court and the High Court on this short ground and the
\nbank filed an appeal before the Supreme Court. The decisions of all the three
\nCourts were reversed by the Supreme Court and the suit filed by the bank was
\ndecreed. Though the decision of the Court primarily revolved around public
\ninterest and Order XXIX, Rule 1, CPC, the Supreme Court went to the extent of
\nholding, in paragraph 10 of its decision, that “by virtue of Order VI, Rule 14,
\ntogether with Order XXIX, Rule 1 of the Code of Civil Procedure, the signing and
\nverification of the plaint, by a person holding an office, could be accepted,
\neven in the absence of any formal letter of authority or power of attorney”.\n<\/p>\n
\t28. In Sugesan and Co.Pvt.Ltd. Vs. Pachayappa’s Trust, 1998 (2) CTC 572,
\nanother Division Bench of this Court expressed the same view, following the
\ndecision of the Division Bench in M.C.S.Rajan and the decision of the Apex Court
\nin Union Bank of India.\n<\/p>\n
\t29. Keeping in mind the consistent views expressed by this Court and
\nvarious other Courts as well as the Supreme Court, let me now turn to the facts
\nof this case. It is no doubt true that the Deed of Power of Attorney with which
\nthe suit was originally instituted, was executed by one Mr.A.K.Seerappan, the
\nfather and power agent of the plaintiff, in favour of his sub agents Chinniah
\nand Duraiswamy. Since the order of the Trial Court, allowing I.A.No.177 of 2004,
\npermitting Chinniah and Duraiswamy to prosecute the suit on behalf of the
\nplaintiff was reversed by this Court in the previous civil revision petition,
\nthe plaintiff Kavitha executed a fresh Deed of Power of Attorney dated
\n20.11.2007, not only appointing P.Chinniah and C.Duraiswamy, but also ratifying
\nall acts done by them, including the filing of the suits by them. In fact, the
\nplaintiff had also sworn to an affidavit before the Trial Court about the
\nappointment of P.Chinniah and C.Duraiswamy. Therefore, the Trial Court was
\njustified in allowing the application I.A.No.226 of 2007 filed under Order III,
\nRule 2, CPC, since the principal has specifically ratified the acts done by
\nP.Chinniah and C.Duraiswamy.\n<\/p>\n
\t30. In view of the above, I find no merits in the Civil Revision Petition
\nand hence it is dismissed. There will be no order as to costs. Consequently,
\nconnected miscellaneous petition is also dismissed.\n<\/p>\n
Svn<\/p>\n
To<\/p>\n
The Principal District Court,
\nDindigul. \t<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Mr.K.Santhanam vs Mr.P.Chinniah on 2 December, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-215021","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nMr.K.Santhanam vs Mr.P.Chinniah on 2 December, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mr-k-santhanam-vs-mr-p-chinniah-on-2-december-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mr.K.Santhanam vs Mr.P.Chinniah on 2 December, 2010 - 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