Wali Mohammad Khan v. Ishak Ali. Khan — 1931 DIGILAW 227 (ALL)

ORDER Sulaiman and Young, JJ. - The present suit for pre-emption was instituted by Wali Mahammad Khan alleged to be 17 years and 11 months old, under the guardianship of his mother (presumably stepmother). The defendants did not challenge the fact of the minority of the plaintiff; but a rival pre-emptor did so. The plaintiff when questioned stated that his father and mother had died when he was still a child and he did not know his correct age. The trial Court while discussing which course was preferable for Wali Mohammad, either to file the suit as major or through his next friend remarked: In my opinion the course adopted by him was the proper one. It has not done any harm if in such a doubtful case it was (he has) chosen to file the suit through his next friend. He has himself been prosecuting his suit and has also made his statement as a witness. If he (be) major, he himself understands his interest and if (not) he is represented by his next friend. It accordingly disallowed the objection. 2. The appellate Court without giving any specific reasons beyond remarking that the appeals could not be properly disposed of without a finding on the question of minority sent that issue for a finding. The opinions of the medical witnesses were divided and the other oral evidence was not very satisfactory, but an entry in a register of a village school in the handwriting of a deceased teacher turned the scale. The Munsif found that the plaintiff was more than 18 years old at the time of the institution of the suit. The appellate Court has thought that that was the sole point for determination and held that he was major. It has relied mainly on the entry in the register and was not impressed by the suggestion that the entry was forged. If it were necessary to find the exact date of the birth of the plaintiff and to determine whether he was within three years of his attainment of majority when the trial Court decided the suit, it may be a question whether the entry made by the teacher, without proof of his special means of knowledge was at all admissible. 3. 3. But the only point urged in appeal is that the fact that the plaintiff was a major at the time of the institution of the suit was not sufficient for the dismissal of the claim. The view of the Court below is supported by the case of Sheorania v. Bharat Singh [1897] 20 All. 90 : (1897) A. W. N. 203 decided (1) when the old CPC was in force and Ruhul Amin v. Shanker Lal A. I. R. 1924 All. 54 : 77 I. C. 30 : 45 All. 701. The last mentioned case fully supports the view of the lower appellate Court. 4. It may be mentioned that the High Courts of Calcutta, Madras and Lahore, have dissented from the view expressed in Sheorania v. Bharat Singh [1897] 20 All. 90 : (1897) A. W. N. 203. These cases are collected in Mr. Mullah's commentary, who prefers the other view (810). 5. Without going to the other High Courts there are observations in cases of this Court also which are not easily reconcilable with the previously mentioned cases. In the Full Bench case of Rajit Ram v. Katesar Nath [1896] 18 All. 396 : 1896 A.W.N. 102 (FB) it was laid down that if the verification of plaint was discovered to be defective the plaint may be amended, for such a defect would not of necessity result in the dismissal of the suit. 6. In the case of Basdeo v. John Smidt [1899] 22 All. 55 : (l899) A. W. N. 172 it was held that the mere fact that the plaint in a suit had not been signed by the plaintiff named therein or by any person duly authorized by him in that behalf would not necessarily make the plaint absolutely void; and that a defect in the signature of the plaint or the absence of signature, could be cured by amendment at any stage of the suit, if the suit was in fact filed with the knowledge and by the authority of the plaintiff. 7. In the case of Bombay Baroda and Central India Ry. Co. Ltd. Vs. 7. In the case of Bombay Baroda and Central India Ry. Co. Ltd. Vs. Siyaji Mills Co., Ltd. , it was held that when a suit is instituted by a proper agent with the knowledge and by the authority of the plaintiff named therein it is unimportant how the plaint was actually filed or signed, and that such irregularity would not be fatal as it did not affect the merits of the jurisdiction of the Court. One view is that a valid presentation of the plaint is absolutely essential and that a defective presentation is not a mere irregularity but affects the jurisdiction of the Court. 8. The other view is that the provisions in 0. 3 and 4 are mere rules of procedure which can be annulled, altered or added to by each High Court separately, and that a failure to comply strictly with those provisions would only amount to an irregularity which can be cured either under S. 99 or 0. 6, R. 17, Civil P. C. An otherwise valid plaint is not void merely because it is handed over to the munsarim by a pairokar or clerk who does not hold a proper power of attorney. We consider-that the conflict of opinion should be set at rest by an authoritative pronouncement, at least so far as this Court is concerned. 9. We therefore direct that this case be laid before the Honorable Chief Justice for constituting a Full Bench. OPINION Sulaiman, Ag. C.J. 1. This case has been referred to a larger Bench because of some apparent conflict in the observations made by this Court in a number of cases. 2. The suit was for pre-emption and was filed in the name of Wali Mohammad Khan stated to be 17 years and 11 months old under the guardianship of his mother. It was instituted on the 28th August 1925. The plaint was signed by the mother and by a pleader appointed under a vakalatnama bearing her signature. It was not disputed in the Courts below that the plaintiff was aware of the institution of the suit and that in fact he was prosecuting it. It was instituted on the 28th August 1925. The plaint was signed by the mother and by a pleader appointed under a vakalatnama bearing her signature. It was not disputed in the Courts below that the plaintiff was aware of the institution of the suit and that in fact he was prosecuting it. Before the hearing of the case when the plaintiff was questioned he stated that his father and mother had died when he was still a child and he did not know his correct age but had learnt from his colleagues that he was about 18 years of age. The vendees did not challenge the fact of the minority of the plaintiff, but a rival pre-emptor did so. The learned Munsif while discussing the course adopted by the plaintiff considered that he chose the method of filing the suit through a next friend because it was a doubtful case and for him it was the proper course. He thought that because the plaintiff himself had been prosecuting the suit, there was no serious defect In the frame of the suit. If he was a major he fully understood his interest, and if he was a minor he was represented by his next friend. The lower appellate Court took a contrary view of the legal position of the plaintiff and remitted an issue for a finding on the question of minority. The finding was against the plaintiff, it being held that he had just attained majority before the institution of the suit. 3. The position according to law was that a suit was filed in the name of the plaintiff by his mother acting as his guardian and next friend and describing him as a minor, while in fact he was of age; but the suit had been authorized by him and it was prosecuted by him in person. The lower appellate Court came to the conclusion that the defect was so serious that it could not in any way be remedied. It has accordingly dismissed the suit. 4. There is some authority for the support of the view taken by the lower appellate Court. The lower appellate Court came to the conclusion that the defect was so serious that it could not in any way be remedied. It has accordingly dismissed the suit. 4. There is some authority for the support of the view taken by the lower appellate Court. It was observed in the case of Sheorania v. Bharat Singh (supra) that a suit instituted on behalf of a person alleged to be a minor through his next friend, when the plaint was neither signed nor verified by the real plaintiff, but only by the next friend, was defective inasmuch as there was no plaint by the real plaintiff before the Court which could be amended. So far as the learned Judges laid emphasis on the absence of any verification of the plaint by the real plaintiff, their observation was contrary to what had been previously held by a Full Bench of this Court in Rajit Ram v. Katesar Nath (supra), viz., that the defect in the verification of the plaint, even if discovered subsequently, was in no way fatal to the suit and could be remedied. The view expressed in Sheorania's case (supra) has been followed recently by a Division Bench of this Court in Ruhul Amin v. Shankar Lal (supra) But in that case emphasis was not laid on the want of signature and verification, as had been done in Sheorania's case, but rather on the absence of proper presentation of the plaint. The learned Judges came to the conclusion that a plaint presented by a next friend of a person who was stated to be minor, Which in fact he was not a minor, was not validly presented to the Court, and that, in view of the provisions of O. 4, R. 1, and O. 3, R. 1 and 2, Civil P. C, a defect of that sort could scarcely be regarded as a defect or irregularity in any proceeding in a suit within the meaning of S. 99 of the Code, but was a plea which affected the jurisdiction of the Court. It was accordingly held that the trial Court had no jurisdiction to entertain the suit at all, except upon a plaint properly presented. It may be remarked that the absence of proper presentation had not been put forward as aground in Sheorania's case. 5. It was accordingly held that the trial Court had no jurisdiction to entertain the suit at all, except upon a plaint properly presented. It may be remarked that the absence of proper presentation had not been put forward as aground in Sheorania's case. 5. On the other hand, there are observations in numerous other cases of this Court which point to the contrary conclusion. We have already referred to the Full Bench case in Rajit Ram v. Katesar Nath (supra). In Basdeo v. John Smidt (supra) it was held that the plaint in a suit which had not been signed by the plaintiff named therein or by any person duly authorized by him in that behalf was not necessarily absolutely void, and that a defect in the signature of the plaint, or the absence of signature where it appeared that the suit was in fact filed with the knowledge and by the authority of the plaintiff named therein, might be waived by the defendant, or if necessary cured by amendment at any stage of the suit. The learned Judges considered that the striking off of the name of the guardian and the description of the plaintiff as being of age was an amendment of the plaint which the Court had authority to permit. That was certainly a case where the plaint had been filed by an advocate but the learned Judges referred with approval to several unreported cases where the plaint had been filed by a person who was not an advocate. 6. In the case of in the matter of the petition of Bisheshar Nath [1918] 40 All. 147 = 44 I.C. 28 = 19 Cr. L.J. 865 a single Judge of this Court observed that R. 14, 0. 6, Civil P. C, which required a pleading to be signed by a party, was merely a matter of procedure, it being the business of the Court to see that that provision was carried out. He further held that where a suit was duly authorized, the proper signing of the plaint was a matter of practice only and if a mistake or omission had been made, it might be amended at any time. He further held that where a suit was duly authorized, the proper signing of the plaint was a matter of practice only and if a mistake or omission had been made, it might be amended at any time. In that case the plaint had been signed by another person on behalf of the plaintiff who was actually in jail at the time and there was obviously no proper presentation of it in Court by him or by any person duly authorized in this behalf. The learned Judge held that there was no fatal defect in the suit. A similar view was expressed by another Bench of this Court in the 'case of Bombay Baroda and Central India Ry. Co. Ltd. Vs. Siyaji Mills Co., Ltd. where it was held that any irregularity in the signature or verification of the plaint was a mere defect of procedure and could not be fatal when the merits of the case had not been affected. In that case a suit had been instituted by a person not duly authorized but with the knowledge and by the authority of the plaintiff named therein. It was accordingly considered that it was unimportant how the plaint was actually filed or signed. 7. The other High Courts in India appear to have taken the view contrary to that expressed in Sheorania's case. We may refer to the case of Taqui Jan v. Obaidulla [1894] 21 Cal. 866 in which Trevelyan and Ameer Ali, JJ., held that a suit instituted by a person, alleging himself to be a minor, the suit being brought through, a next friend, while in fact the plaintiff was not a minor at the time, need not be dismissed and the plaint could be amended. This was followed by the Calcutta High Court in the case of Narayan Chandra Das Vs. Dulal Chandra Dutta, AIR 1927 Cal 477 and by the Lahore High Court in the case of AIR 1926 82 (Lahore) The Bombay High Court in the case of Ganapati Nana Powar v. Jivanabai Subanna A. I. R. 1923 Bom. 44 : 76 I. C. 34 : 47 Bom. 227, where the plaintiff's mukhtear, who held a special power of attorney and not a general power of attorney as required by the rules of that High Court, had filed the plaint, held that that was a mere irregularity which could be cured. 44 : 76 I. C. 34 : 47 Bom. 227, where the plaintiff's mukhtear, who held a special power of attorney and not a general power of attorney as required by the rules of that High Court, had filed the plaint, held that that was a mere irregularity which could be cured. In Shunmuga Chetty v. C. K. Narayana Ayyar [1917] 40 Mad. 743 : 41 1. C. 510 Abdur Rahim and Burn, JJ., held that where a plaintiff had been described in the plaint as a minor but had really attained majority some four days before the plaint was filed by his next friend under a bona fide belief that he was still a minor, the suit should not be dismissed but the plaint should be returned for presentation after making the necessary amendments by striking off the description of the plaintiff as a minor suing through a next friend and making other consequential alterations in the plaint. It is thus clear that there is plenty of authority in support of this other view. 8. It seems to us that in Ruhul Amin's case AIR 1924 All. 54 : 77 I.C. 30 : 45 All. 701 it was assumed that the CPC expressly required that the plaint should be presented either by the plaintiff personally or by some person duly authorized by him. No doubt that is necessarily implied when the presentation of the plaint is necessary for the institution of a suit. But there is no rule which in express terms requires that the plaintiff should file the plaint personally. Nor is there any rule which expressly says that it should be filed by a person holding a general power-of-attorney on behalf of the plaintiff or otherwise duly authorised by the latter. The most that can be said is that this is implied by the scheme of the rules in Sch. l of the Code. 9. If the legislature had intended that the absence of the presentation of the plaint by the plaintiff or by some person duly authorized by him would altogether oust the jurisdiction of the Court the language used would have been definite and specific. l of the Code. 9. If the legislature had intended that the absence of the presentation of the plaint by the plaintiff or by some person duly authorized by him would altogether oust the jurisdiction of the Court the language used would have been definite and specific. Instead of that, S. 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 authorized agent. As there is no specific rule either requiring or expressly authorizing the plaintiff to present the plaint it is doubtful whether O. 3, R. 1, of the Code would apply to such a case. If it does not apply, the presentation by a person orally authorized 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 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 authorized, 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. 10. We may also refer to the case of Mohini Mohun Das v. Buddan Saha Das [1890] 17 Cal.580 (P.C.), decided by their Lordships of the Privy Council. There three suits had been filed by one of three joint creditors, the others being named as co plaintiffs with him in the plaints, which he alone had signed and verified. The record did not show that the other plaintiffs, who had. omitted to sign the plaints or to verify them had repudiated the suits. There three suits had been filed by one of three joint creditors, the others being named as co plaintiffs with him in the plaints, which he alone had signed and verified. The record did not show that the other plaintiffs, who had. omitted to sign the plaints or to verify them had repudiated the suits. It does not appear from the judgment that they had given any express approval of the suits to the Court before the period of limitation had expired. The question was whether the other two plaintiffs must be considered to have been plaintiffs to the suits from the very beginning or from the date when certain orders intended to cure the defects were passed. Their Lordships of the Privy Council clearly held that the other plaintiffs became parties to the suits from the time when the plaints were filed and that the suits 'were not barred by lapse of time. This in our opinion, is a clear authority for the proposition that the absence of signatures or verification or for the matter of that the absence of presentation on the part of some of the plaintiffs out of several does not affect the jurisdiction of the Court, and the suit must be deemed to have been duly instituted on theft behalf if it was filed with their knowledge and authority. 11. In this view of the case the plaintiff's, suit could not necessarily be thrown out on the technical ground that the plaint as originally filed described him as a minor under the guardianship of his mother. The defect in its form should be cured as it was due to a bona fide mistake. As the defect does not affect the merits of the case, it is not necessary to have a trial de novo. 12. We accordingly allow this appeal and setting aside, the decree of the lower appellate Court send the case back to that Court with direction to allow the plaintiff to amend the description of himself in the plaint and then to dispose of the appeal according to law. The costs of this appeal will abide the result.