Research › Search › Judgment

Karnataka High Court · body

2010 DIGILAW 958 (KAR)

T. P. Sathyanarayana v. Mahesh

2010-09-06

A.N.VENUGOPALA GOWDA

body2010
Judgment :- 1. Respondents - plaintiffs have instituted suit on 2.3.05 for ejectment, recovery of arrears of rent and for other reliefs against the petitioners - defendants. Written statement was filed on 20.06.05. Defendants filed I.A.4 under O VII R 11 (d) of CPC to reject the plaint on the ground that it is not verified as required under O VI R 15 of CPC. Plaintiffs filed objections stating that a verification affidavit has been filed along with the plaint and hence, the plaint is not liable to be rejected. The Trial Court has held that the requirement of O VI R 15 is a procedural requirement and the mistake or negligence on the part of the plaintiffs is an irregularity which can be cured by amending the plaint and hence, on the ground of non-verification of the pleadings, plaint cannot be rejected under O VII R 11 (d) of CPC. This writ petition by their defendants, is against the said order. 2. Sri Suresh S. Lokre, learned advocate appearing for the petitioners contended that, the provisions under O VI R 15 of CPC is mandatory and in view of the undisputed fact that, the plaint has not been verified by the plaintiffs, the Trial Court is not justified in rejecting I.A.4. Learned counsel contends that the impugned order is both irrational and illegal. 3. Sri K.B. Thippeswamy, learned advocate appearing for the respondents on the other and contended that, the deficiency was a mere procedural error which was capable of being cured, which occurred on account of the inadvertence and hence an application has now been filed seeking permission of the Court to amend the plaint i.e., to incorporate the verification. Learned counsel submitted that, the omission which is bona fide would not render the plaint liable for rejection. 4. Having heard the learned counsel on both sides and having perused the writ papers, the point for consideration is: " Whether the plaint is liable to be rejected as barred by law on account of, non verification of the contents of the plaint? " 5. Plaint has to comply with the provisions of O VI of CPC and has to contain the particulars required by O VII, Rules 1 to 8 of CPC. O VI deals with pleadings shown and as provided in Rule 1, ‘pleading’ has been indicated to mean ‘plaint’ or ‘written statement'. " 5. Plaint has to comply with the provisions of O VI of CPC and has to contain the particulars required by O VII, Rules 1 to 8 of CPC. O VI deals with pleadings shown and as provided in Rule 1, ‘pleading’ has been indicated to mean ‘plaint’ or ‘written statement'. Rule 15 of O VI provides for verification of pleadings and reads as follows: Verification of pleadings:- (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or one of the parties pleading or by some other person provided to the satisfaction of the Court to be acquainted with the facts of the case. (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed. (4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings. 6. Sub-Rule (4) of R 15 was introduced by way of Amendment Act 46 of 1999 with effect from 1.7.2002. The provisions of O VI and O VII are interconnected with the provisions of S.26 CPC and hence, it is necessary to notice the S.26, which reads as follows: Institution of suits.- (1) Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. (2) In every plaint, facts shall be proved by affidavit. 7. A perusal of the plaint as at Annexure-B would indicate that the contents of the plaint have not been verified by the plaintiffs. However, there is no dispute that an affidavit was filed along with the plaint, verifying the contents of the plaint. The defendants having filed the written statement, there is no plea raised with regard to the omission of the plaintiffs to verify the contents of the plaint. However, there is no dispute that an affidavit was filed along with the plaint, verifying the contents of the plaint. The defendants having filed the written statement, there is no plea raised with regard to the omission of the plaintiffs to verify the contents of the plaint. In I.A.4, it was pointed out that, there exists no verification of the plaint and it was contended that, the same is very essential and very much required as per O VI R 15 of CPC, which being mandatory, the plaint is liable for rejection on the ground that it is barred by law. 8. Keeping in view the provisions contained under S.26, O VI and VII of CPC, the omission with regard to verification of the plaint, whether would render the suit barred by law, is the core question for consideration. 9. In the case of SHAIKH SALIM HAJI ABDUL KHAYUMSAB Vs. KUMAR AND OTHERS - 2005 AIR SCW 6031, it has been held that the provisions of O VIII R 1 of CPC, after amendment, have been held to be directory on the reasoning that rules of procedure are handmaids of justice and the language employed by the draftsman of procedural law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. 10. In the case of KAILASH Vs. NANHKU AND OTEHRS reported at 2005 AIR SCW 2346, while considering the amended provisions of O VIII R 1 of CPC, it has been held that, the provisions of the Code or any other procedural enactment ought not to be in a manner which would leave the Court helpless to meet extra-ordinary situations in the ends of justice. Apex Court has observed that, merely because the provision of law is couched in negative in employing a mandatory character, the same is not without exceptions and the direction contained regarding the period for filing written statement under O VIII R 1 of the Code is directory and not mandatory, being procedural law. 11. In the case of UDAY SHANKAR TRIYAR Vs. RAM KALEWAR PRASAD SINGH AND ANOTHER reported in 2006 (1) SCC 75 , the appellant filed eviction suit, which was contested. After trial, the suit was decreed. Defendants filed appeal. An application for substitution was filed, which was opposed by the plaintiffs. 11. In the case of UDAY SHANKAR TRIYAR Vs. RAM KALEWAR PRASAD SINGH AND ANOTHER reported in 2006 (1) SCC 75 , the appellant filed eviction suit, which was contested. After trial, the suit was decreed. Defendants filed appeal. An application for substitution was filed, which was opposed by the plaintiffs. On hearing the said application, the appeal was dismissed by recording a finding that, the vakalathnama accompanying the memorandum of appeal had not been filed on behalf of the appellant and hence, the appeal presented on behalf of the appellant No.2 is a nullity in the eye of law. When challenged, the said order was set aside by the High Court and the plaintiffs challenged the said order in the Honorable Supreme Court contending that, the memorandum of appeal filed by an advocate without any authority in the shape of vakalathnama is not a valid presentation. The question considered was, whether the defect could be permitted to be rectified. Noticing the said deficiency, it was held that the omission will not invalidate the memorandum of appeal if such omission or defect is not deliberate and being one relatable to procedure can subsequently be corrected. Noticing the provision in O VI R 14 of CPC which requires that every pleading be signed by a party and the pleader and if there were to be any bona fide omission, it has been held that the defect can be permitted to be rectified at any time before judgment and even by the appellate Court by permitting appropriate amendment, when such defect is noticed during hearing. 11. S.26 and O VI and VII of CPC concern the institution of suits. The plaint must be filed in accordance with law. Since rules of procedure are made to further the cause of justice and not to prove a hindrance thereto, since procedural enactments ought not to be construed in a manner which would prevent the Court from meeting the ends of justice in different situations, in my opinion, R 15 under O VI has to be treated as directory in nature and non-compliance thereof would not automatically render the plaint as barred by law to invoke clause (d) of R 11 under O VII of CPC. 12. 12. The Trial Court is thus justified in holding that the mistake or negligence on the part of the plaintiffs being an irregularity can be corrected by amending the pleading and the omission noticed does not call for rejection of the plaint. In the circumstances, the impugned order rejecting I.A 4 is neither irrational nor illegal. In the result, the writ petition is devoid of merit and shall stand dismissed. The suit being one for ejectment and recovery of arrears of rent, the Trial Court is directed to expedite the trial and disposal of the suit and dispose of the same within a period of six months from the date a copy of this order is placed on its record. In the circumstances of the case, there shall not be any order as to costs.