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1962 DIGILAW 326 (KER)

VARKEY v. NENSHI DEVSHI KATHAWALA LTD

1962-11-05

T.C.RAGHAVAN

body1962
Judgment :- 1. In a suit filed by Nenshi Devshi Kathawala (private) Ltd. represented by its power of attorney-holder and Manager, Vasanji Anadji, the defendant raised an objection that there was no proper plaint before court as required by R.23 of the Travancore-Cochin Civil Rules of Practice. The lower court rejected this contention, which is being reiterated before me in revision. 2. The relevant portion of R.23 (1) provides that when a party appears by an agent other than a pleader, 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 other written authority, thereunto authorising him or a properly authenticated copy thereof. The contention of the learned counsel of the petitioner is that Vasanji Anandji has not produced the power of attorney or other written authority, authorising him to act for the Company. According to him, the signing and verification of the plaint is an act as contemplated by Order III, R.1 of the Code of Civil Procedure and R.23 of the Civil Rules of Practice. This contention appears to be pointless on a close scrutiny of R.1 of Order III. The rule provides that any appearance, application or act in or to any court, required or authorised by law to be made or done by a party in such court, may be made or done by the party in person, or by his recognised agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf. This evidently deals with appearance, application or act in or to any court and it provides that such appearance, application or act in or to any court may be made or done by the party in person, or by his recognised agent, or by a pleader. This shows that the appearance, application or act must be in or to a court. It is apparent that the signing and verification of a plaint is not any appearance, application or act in or to a court. In R.23 the appearance, the application or the act contemplated is also in or to a court as in Order III, R.1. Therefore, neither Order III, R.1 of the Code nor R.23 of the Rules of Practice applies to the signing and verification of a plaint. 3. In R.23 the appearance, the application or the act contemplated is also in or to a court as in Order III, R.1. Therefore, neither Order III, R.1 of the Code nor R.23 of the Rules of Practice applies to the signing and verification of a plaint. 3. The provision applicable to the present case is R.1 of Order XXIX of the Code, which provides that in a suit by corporation any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation, who is able to depose to the facts of the case. Such power to subscribe to the plaint as contemplated by Order XXIX, R.1 is to be searched for in the Articles of Association of the corporation and if the corporation by its provisions in the Articles authorises its Manager to subscribe to the plaint and he signs and verifies it, the plaint is a proper plaint under Order XXIX, R.1; and under R.23 of the Civil Rules of Practice the plaint cannot be rejected for the non-production of the power of attorney or other written authority. I had occassion to consider this matter in another case, namely P. T. Varghese v. Industrial Bank Ltd., (1962 II KLR. 381). It may also be of advantage to refer to All India Reporter Ltd. v. Ramachandra Dhondo Datar [AIR. 1961 Bom. 292] in this connection. 4. The learned Advocate of the petitioner draws my attention to the decision in All India Barai Mahasabha v Pandit Jnngi Lal Chaurasia [AIR. 1941 Oudh 169], which lays down that the presentation of a plaint, memorandum of appeal or an application to the Office of a Court is an "act in any court", so that it is imperative that such presentation should be made by the party in person, or by his recognised agent, or by a pleader. That is so. In this case the presentation of the plaint was done by the pleader of the plaintiff and therefore there is nothing improper or illegal in the presentation of the plaint. The objection is to the signing and verification of the plaint by the Manager and therefore this decision does not advance the case of the petitioner. The Civil Revision Petition has thus no substance and the same is dismissed with costs. 5. The objection is to the signing and verification of the plaint by the Manager and therefore this decision does not advance the case of the petitioner. The Civil Revision Petition has thus no substance and the same is dismissed with costs. 5. The petitioner's learned counsel in the course of the discussion at the bar submitted that the petitioner was not given notice when the amended plaint was received after the substitution of the 2nd plaintiff in the suit. That appears to be incorrect. I. A. No. 2446 of 1961 appears to have been filed before the lower court for accepting the amended plaint. In that petition notice and copy of the amended plaint also appear to have been given to the defendant and the amended plaint was received only thereafter and that without any objection by the defendant. The suit will therefore proceed hereafter on the basis of the amended plaint. Dismissed.