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1954 DIGILAW 11 (MP)

Madanlal v. Union of India

1954-03-02

SATHAYE

body1954
ORDER: This revision petition was once dismissed for default on 26-8-53, but on the application of the applicant was revived on 16-11-53. This is deft's revision against the order dated 31-7-52, in Civil Suit No.26 of 1952 in the Court of the Subordinate Judge, Bhopal, holding that the plaint was properly signed and verified on behalf of the plaffs.1 and 2, the non-applicants. 2. The facts relevant for the purposes of the revision, as it now stands, after giving up the ground no.4, are as follows. Three plaintiffs viz., the Union of India, State of Bhopal and the Bank of Bhopal sued the deft, for money due on a pronote for Rs.6,000/- dated 13-12-48 said to have been executed by the deft, in favour of the Bank of Bhopal as agent of the then Government of Bhopal and represented by the Union of India at the date of the suit. The plaint was signed by One Shri M.B. Lal on behalf of the plaintiffs 1 and 2 and by one Shri Mani, General Manager of the plaintiff No.3 and verified only by the last named person. The defendant raised a preliminary objection that the plaint was not properly signed fey or on behalf of the plaintiffs 1 and 2. The learned Subordinate Judge refuted the objection observing that "it was properly signed as the Government Advocate had signed it for plaintiff No.1 and the then Financial Adviser for the plaintiff No.2. 3. The defendant challenges this finding. It is clear, as is now conceded before me, that the Government Advocate, Shri Bhambhani has not signed the plaint as duly authorised to do so either an behalf of the Union of India or the State of Bhopal, but merely in his capacity as a pleader for the plaintiffs, as required by O.VI, R.14 of the Code of Civil Procedure. The plaint, it is clear, is signed by Shri M.B. Lal on behalf of both these plaintiffs 1 and 2. The question is whether it was properly signed by him. 4. As laid down in O.VI R.1, 'pleading' shall mean plaint or written-statement'. The plaint, it is clear, is signed by Shri M.B. Lal on behalf of both these plaintiffs 1 and 2. The question is whether it was properly signed by him. 4. As laid down in O.VI R.1, 'pleading' shall mean plaint or written-statement'. Rule 14 of O.VI of the Code requires that "every pleading shall be signed by the parties 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 saga the same or to sue or to defend the suit". The plaintiffs 1 and 2 are merely juristic or corporate bodies and as such could sign the plaint only through the person duly authorised to do so. There is nothing stated in the plaint that Shri M.B. Lal was such a person. It is because of the absence of any such authority and an averment to that effect that the defendant raised the objection. 5. Order VI, R.2 requires that every pleading shall contain a statement in a concise form of the material facts on which the party pleading relies for his claim. It is clear that the fact, that the person who signed the plaint for plaintiffs 1 and 2 was or was not duly authorised, was a material fact. It may be pointed out that all facts which, though not necessary to establish the cause of action or defence, but which the party pleading is required to prove, at the trial, are also material facts. In order to prove that the plaint was duly and properly signed, as required by O.VI R.14 of the Code, it was necessary that the plaintiffs should have stated that Shri M.B. Lal was duly authorised to do so. It was the absence of any such statement in the plaint that has embarrassed the defendant compelling him to raise the objection. In - 'Adusurilli Gopalakrishnayya Garu v. Province of Madras', AIR 1947, PC 132 (A), at page 133 it is observed that: "The rule that material facts should be pleaded is no mere technicality and an omission to observe it deprives pleadings of most of their value and may increase the difficulty of the Court's task of ascertaining the rights of the parties'. It was said that it could only be shown in the evidence that the person was duly authorised. I am perfectly clear that this could not be so as no evidence of a fact which is not pleaded could be admissible. A number of decisions can be cited in this behalf and in - 'Firm Sher Mohd. Khan Zamanuddin Khan v. Firm Mian Haji Ahmad Gul Abdul Aziz', AIR 1935 Pesh 132 (B), it has been pointed out that: "Where in a suit on a promissory note payable at a specified place, the plaint contains no allegation of presentment, plaintiff cannot be given an opportunity of proving presentment". 6. It may be mentioned that after the issues including the one on this question of the plaint being properly signed, were framed, there were a number of hearings in the suit on which a document to show if Shri M.B. Lal was duly authorised could be filed but none was produced by the plaintiffs nor any reference to any such order or notification was made even at the stage of arguments on 5-5-52. Even at this stage no such order of notification is shown to this Court except an order viz. S.R.O.460 dated 24-8-1950 under which the President was pleased to direct that the Chief Commissioner of Bhopal shall, subject to the control of the President, and until further orders exercise the powers and discharge the functions of a State Government under O.27, Civil P.C. The relevant portion of R.1, O.27 of the Code lays down that: "In any suit by or against the Government the plaint or written-statement shall be signed by such person as the Government may, by general or special order, appoint in this behalf" The above S.R.O. thus merely directs that for the Union of India the Chief Commissioner of Bhopal shall sign the plaint. There is nothing to show that Shri M.B. Lal was duly authorised agent for the Union of India and the plaint signed by him on its behalf was not properly signed. 6a. Even on behalf of the State of Bhopal which again means the Central Government, as held in the several decisions of this Court, no such authority in Shri M.B. Lal has been shown. No such authority even from the Chief Commissioner of Bhopal to Shri M.B. Lal was shown in this Court. 6a. Even on behalf of the State of Bhopal which again means the Central Government, as held in the several decisions of this Court, no such authority in Shri M.B. Lal has been shown. No such authority even from the Chief Commissioner of Bhopal to Shri M.B. Lal was shown in this Court. A curious argument was made by no less a counsel than the Government Advocate that Shri M.B. Lal was the Financial Adviser and therefore as the matter dealt with in the suit concerned the finances of the State, Shri M.B. Lal was automatically authorised to sign the plaint. For one thing the official capacity or designation, of Shri M.B. Lal has not been stated in the plaint and for another it need hardly be pointed that unless the functions of the Financial Adviser are stated before the Court with the authority in support of such statement, the argument could not contain any merit. The fact stands that Shri M.B. Lal was not a duly authorised agent for signing the plaint either on behalf of the State of Bhopal much less for the Union of India and the plaint signed by him on behalf of both was not properly signed as required by O.6, R.14, Civil P.C. It may be added that the notification No.110 dated 17-7-1951, found in the Gazette of Bhopal dated 18-7-1951, referred to by the learned Government Advocate is of no help as the plaint was presented on 13-2-1951. 7. An attempt was made on behalf of the applicant to urge that plffs.2 and 3 could not join a such in the suit as they had no right to sue. In my opinion,' in the circumstances stated in the plaint even if they might not be necessary parties they were at least proper parties. 8. During arguments the learned Government Advocate urged that the suit should not be thrown out on this ground, but an opportunity should be given to the plffs. to remedy the defect in the interest of justice. No such application in that behalf was made in the lower Court nor in this Court and it was expected that the learned Government Advocate would file an application in that behalf not only in the lower Court but at least in this Court. to remedy the defect in the interest of justice. No such application in that behalf was made in the lower Court nor in this Court and it was expected that the learned Government Advocate would file an application in that behalf not only in the lower Court but at least in this Court. The record, however, will now go back to the lower Court for proceeding with the suit to consider the fact of the omission by the plffs. to properly sign the plaint and the Court may consider such application by plffs. if made before it within a reasonable time. 9. The order of the Subordinate Judge dated 31-7-52 containing the finding on issue No.1 is thus materially irregular and is liable to be set aside. The revision petition is allowed with costs against the non-applicants who shall bear their own costs. The order in question is set aside and the record of the suit is sent back to the trial Court for disposing it of according to law. Counsel's fees for each side will be Rs.50/- if certified. Revision allowed.