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2012 DIGILAW 223 (JK)

Bodh Raj v. Jeet Singh

2012-05-08

MUZAFFAR HUSSAIN ATTAR

body2012
In a suit instituted by the respondent against the petitioner pending on the files of learned Sub Judge, Kathua, objections were raised about its maintainability on the ground that the plaint was not signed by the pleader and the verification was defective. Learned trial Judge vide impugned order did not accept the contentions raised and directed the plaintiff-respondent to amend the pleadings so as to enable him to remove the deficiency in the verification of the plaint. Mr. Anil Sethi, learned counsel for the petitioner, in his fairness submitted that since the plaint was signed by the plaintiff, non-signing of the same by the learned counsel would not be fatal to the suit and may not result in its dismissal on this count. Learned counsel, however, strenuously argued that in view of the defective verification, the plaint should be rejected. He submitted that duty was cast upon the plaintiff-respondent to verify the pleadings in accordance with the mandate contained in Order VI Rule 15. Learned counsel also submitted that without there being prayer for amending the plaint, the learned trial judge could not direct for amendment of the plaint. Learned counsel also referred to the Civil Laws (Amendment) Act, 2009 and submitted that in terms of the amendment made in the said Section 26, the plaint has to be supported by an affidavit. Learned counsel also submitted that the affidavit has not been filed and the plaint would be liable to be rejected and suit dismissed. To facilitate the trial of the case, procedure provides the mode and method for the courts for arriving at a just and lawful conclusion by applying uniform standards. Some of the provisions in the procedural law are mandatory in nature, which are to be followed in letter and spirit whereas, some are directory, non- compliance whereof may not be fatal to the suit and whereof may not result in dismissal of the suit. The procedural laws in all circumstances would not be fatal resulting in closing of the proceedings. The procedural laws facilitate determining the substantive rights of the contesting parties. The verification of the pleadings assumes importance as it gives inkling to the court about the stand taken by the parties in the respective pleadings. However, a defect in the verification of the pleadings will not result in the non- suiting of the parties. The procedural laws facilitate determining the substantive rights of the contesting parties. The verification of the pleadings assumes importance as it gives inkling to the court about the stand taken by the parties in the respective pleadings. However, a defect in the verification of the pleadings will not result in the non- suiting of the parties. It is a defect, which can be removed by directing the party to rectify for the same. When such a defect is noticed in the pleadings, the court will always direct the party concerned to file a fresh memo of verification. In the present case, the Subordinate Court has directed the plaintiff-respondent to amend his pleadings so as to enable him to comply with the mandate contained in Order VI Rule 15. The learned Subordinate court ought to have directed the plaintiff-respondent to file fresh memo of verification of pleadings instead of asking him to amend the pleadings. It is submitted that the amended plaint wherein the verification has been made in accordance with the mandate contained in Order VI Rule 15 has already been filed by the plaintiff so same shall be treated as a valid plaint and the trial court shall commence the proceedings on the basis of the said plaint. The next contention of learned counsel for the petitioner is that the affidavit has not been filed in support of plaint. The aforesaid reasons cannot be said to be fatal and would not result in non-suiting of the plaintiff-respondent. He has to be given opportunity to file an affidavit in terms of Civil Laws (Amendment) Act, 2009 so as to enable him to comply with the provision of amending Section 2 whereunder Section 26 of the Code of Civil Procedure Svt, 1977 has been amended. In view of the above stated reasons, this petition being merit less and is accordingly dismissed. The respondent is directed to file affidavit in support of his plaint within a period of two weeks from the date record is received by the trial court. Record be sent back.