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2010 DIGILAW 1464 (CAL)

Alauddin Halder v. Seth Daulat Ram Lilani

2010-12-21

PRASENJIT MANDAL

body2010
Judgment :- Prasenjit Mandal, J This application is at the instance of the defendants/petitioners and is directed against the judgment and order dated March 18, 2005 passed by the learned Additional District Judge, Fourteenth Court, Alipore, District – South 24 Parganas in Civil Revision Case No.295 of 2002 thereby affirming the order no.55 dated April 8, 2002 passed by the learned Civil Judge (Junior Division), Second Court, Baruipur, District – South 24 Parganas in Title Suit No.192 of 1997. The short fact is that the opposite parties instituted a Title Suit being Title Suit No.192 of 1997 before the learned Civil Judge (Senior Division), Baruipur, District – South 24 Parganas against the petitioners for declaration, injunction and other reliefs through their alleged constituted attorney, Mansur Ali Molla. The petitioners have been possessing the suit property, as described in the schedule of the plaint, since purchase in the year 1992. The so-called power of attorney is a forged document and Mansur Ali Molla was not at all empowered by the plaintiffs as their constituted attorney to act on their behalf and as such, the said Mansur Ali Molla had no locus standi to bring any litigation including the instant suit on behalf of the plaintiffs. For that reason, the petitioners filed an application under Order 6 Rule 14 & 15 of the Code of Civil Procedure praying for direction upon the plaintiffs to appear in person for proper verification. It is also contended that the verification of the plaint has not been properly done. It was not signed by any of the plaintiffs. Therefore, the plaint should be rejected. That application was rejected by the learned Trial Judge and then it was confirmed by the revisional court. Being aggrieved by the said order, this application has been preferred. Mr. Ashis Kumar Bagchi, learned Advocate appearing on behalf of the petitioners, submits that the plaintiffs are the said Daulat Ram Lilani and others whereas the alleged power of attorney was executed in favour of Mansur Ali Molla. There are 10 plaintiffs and in fact, none of them signed on the plaint as well as the verification. It is very doubtful whether the plaintiffs at all filed the said suit or if they executed the so-called power of attorney in favour of Mansur Ali Molla. So, presence of the plaintiffs is a must for verification of the genuineness of the matter. Mr. It is very doubtful whether the plaintiffs at all filed the said suit or if they executed the so-called power of attorney in favour of Mansur Ali Molla. So, presence of the plaintiffs is a must for verification of the genuineness of the matter. Mr. Bagchi also submits that the power of attorney has not been signed by all the plaintiffs at all. On the other hand, Mr. Hiranmay Bhattacharya, learned Advocate appearing on behalf of the opposite party, submits that the suit can well be filed on behalf of the plaintiffs by one person having the power of attorney in his favour to that effect. Similarly, verification was made by the person holding the power of attorney and it could well be done by a person under authority. In fact, after filing of the suit, the defect as pointed out by the defendants has been cured by proper verification of the plaint subsequently and by execution of another power of attorney in favour of the plaintiffs. Therefore, the question that arises for decision in this application is whether the impugned judgment and order of the revisional court should be sustained. Upon hearing the learned counsel for the parties and on perusal of the materials on record, I find that the suit was filed for declaration and permanent injunction by as many as 10 plaintiffs through one Mansur Ali Molla. But the plaint and the verification have not been signed by any of the plaintiffs. According to Order 6 Rule 1 of the C.P.C., the plaint shall be signed by the plaintiff and his lawyer. Such a procedure has been adopted in the Code to fix responsibility on the person who is affirming the averments of the plaint. Similarly, the provision for verification has also been made for fixing responsibility and to have the genuineness of the matter so that if any false statement is made, appropriate action may be taken. Therefore, the verification must be done by the plaintiff. But, if the plaintiff is unable to sign the plaint and the verification for good reason that can be done by any responsible person on behalf of the plaintiff on the basis of a power of attorney. In the instant case, as per submission of the learned Advocate of both the sides, the verification of the plaint was wrong initially but it was cured subsequently. In the instant case, as per submission of the learned Advocate of both the sides, the verification of the plaint was wrong initially but it was cured subsequently. This being the position, so far as the allegation as to Order 6 Rule 15 of the C.P.C. is concerned, the same should not be looked into at present. So, the question is now to be considered as to the provision of Order 6 Rule 14 of the C.P.C., i.e., the signing of the plaint by the party and his pleader. Admittedly, the plaint was not signed by all the plaintiffs at the time of filing of the same and even the power of attorney in favour of Mansur Ali Molla was not executed by all the plaintiffs at the time of filing of the suit. Subsequently, the power of attorney filed by the plaintiffs have been signed by all the plaintiffs. But the defendants / petitioners have contended that the plaintiffs did not file the said suit at all. To verify such position, they prayed for appearance of the plaintiffs in person before the learned Trial Judge. In this matter, I am of the view that when such a plea has been taken by the defendants/petitioners, the Court should have taken steps for appearance of the plaintiffs in person to verify whether they actually filed the suit or not or if they gave the power of attorney at all in favour of Mansur Ali Molla to file the suit on their behalf. This matter escaped the notice of the learned Trial Judge as well as the lower revisional Court. This being the position, I am of the view that the learned Trial Judge should fix a date for appearance of all the plaintiffs, upon hearing both the sides, and then he shall interrogate each of them to verify whether they executed the power of attorney to file the suit. If they affirm, the matter ends there. He may ask the plaintiffs to file affidavits to that effect. But if they do not appear and affirm the said fact, the learned Trial Judge is at liberty to take appropriate steps with regard to the suit and also the plaintiffs as he deems fit and proper. The impugned order, therefore, cannot be sustained. It is set aside. This revisional application is disposed of in the manner indicated above. But if they do not appear and affirm the said fact, the learned Trial Judge is at liberty to take appropriate steps with regard to the suit and also the plaintiffs as he deems fit and proper. The impugned order, therefore, cannot be sustained. It is set aside. This revisional application is disposed of in the manner indicated above. The learned Trial Judge shall give such direction for appearance within 30 days from the date of communication of this order. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.