Kerala High Court
P.J. Joseph vs Suhara Beevi Hussain on 5 August, 1999
Equivalent citations: AIR2000KER60, AIR 2000 KERALA 60, (1999) 3 CIVILCOURTC 673, (1999) 3 KER LT 102, (2000) 1 LANDLR 625, (1999) 4 RECCIVR 515, (2000) 1 CIVLJ 429, (2000) 3 CURCC 132
JUDGMENT Rajendra Babu, J.
1. This appeal is directed against the judgment and decree passed by the learned single Judge in A.S. 310/1988 reversing the decree passed by the Sub-Judge, Alappuzha, in O.S. 317/ 1981. The respondent in A.S. 310/1988 is the present appellant.
2. The facts of the case are as follows : The plaintiff Suhara Beevi. the owner of Textile Traders". Alappuzha, filed O.S.317/1981 for recovery of the amount due from the defendant towards balance price of textiles sold to the defendant on credit. The plaint was signed by the plaintiff's husband who was holding the power-of-attorney of the plaintiff. It was alleged that the defendant purchased textile goods from the shop of the plaintiff on credit for his business and as on 14-9-1978 an amount of Rs. 15,424.42 was due on 14-9-1978 the defendant paid Rs.51/- and acknowledged the liability and even after demand , the defendant failed to pay the amount and hence the suit. The defendant/appellant filed written statement contending that the suit was not maintainable, that the defendant had executed mortgage deed No. 1354/ 76 mentioning the receipt of Rs.10,000/-even though no amount was received, as guarantee or security for the credit purchases from the textile shop of the plaintiff up to an amount of Rs.10,000/- and that the plaintiff has to sue on the basis of the above mortgage for an amount up to Rs.10,000/-and a suit will lie only in respect of the amount in excess of Rs. 10,000/-. The defendant purchased goods for a total amount of Rs. 17,680.35 on different dates and he had already paid an amount of Rs. 7635.07 and the balance was only Rs. 10,045.28, of which Rs. 10.000/- was covered by the mortgage and the balance had been set off towards reduction in price and thus the defendant prayed for the dismissal of the suit.
3. As the defendant contended that the husband was- not specifically authorised in Ext.A1 power-of-attorney to institute suits, the plaintiff filed I.A.886/1984 seeking the permission of the court to sign the plaint. The trial court found that notwithstanding the fact that Ext.B1 mortgage deed was executed in favour of the plaintiffs husband, the suit was maintainable. The plea of discharge set up by the defendant also was found against him. But the suit was dismissed on the ground that the plaintiff had not signed the plaint and there was no proper authorisation for the husband of the plaintiff to sign the plaint and that the suit was barred by limitation. I.A.886/84 filed by the plaintiff seeking the leave of the court to sign the plaint was also dismissed as it was filed after the expiry of the period of limitation.
4. The plaintiff filed A.S.310/81. The learned Single Judge, relying on the decision of this court in Narayanan Nair v. John Kurien 1988 (1) Ker 673 held that even oral authorisation was sufficient to constitute due authorisation as per the proviso to Order 6 Rule 14 CPC. It was further held that the omission to sign and verify the plaint by the plaintiff was not such a defect as could affect the merits of the case or the jurisdiction of the court and it can be set right even after the expiry of the period of limitation for filing the suit and accordingly allowed I.A.886/84 permitting the plaintiff to sign the plaint and that the suit was not barred by limitation. Accordingly the suit was decreed and permitted the plaintiff to sign the plaint within a period of three weeks from the date of the order. The defendant challenged the decree in A.S.310/88 by preferring this appeal A.F.A.27/1999.
5. The question arising for consideration is whether the plaintiff can be allowed to sign the plaint after the Judgment of the appellate court and thereby, was there a denial of a valuable right conferred on the defendant by the efflux of time. Parties are referred to as plaintiff and defendant as mentioned in the plaint.
6. The suit was instituted by plaintiff Suhara Beevi Hussain who was running the textile business by name Textile Traders" at Alleppey. Admittedly the defendant purchased textile goods from Textile Traders" 6n credit. As the defendant defaulted in paying some amount, the plaintiff filed O.S.317/81 for realisation of the balance amount due from the defendant. The plaint was signed by the husband of the plaintiff who was running and managing the entire affairs of the business of Textile Traders" on the strength of Ext.A1 power-of attorney executed by the plaintiff. The learned counsel for the appellant argued that the husband of the plaintiff was not authorised to institute any suit as per Ext.A1 power-of-attorney and as per the proviso to Order 6 Rule 14, CPC, a person duly authorised can sign the plaint only on the two grounds mentioned there in the proviso to Rule 14, that is, when "the party was absent or for good cause unable to sign the plaint." it was further argued that no such reasons or grounds were mentioned in the plaint and as such the husband of the plaintiff was not authorised to sign the plaint and hence there was no proper plaint. The meaning of the words "duly authorised" in the proviso to Order 5 Rule 14 was considered by a Single Bench of this 'Court in Narayanan Nair's case 1988 (1) Ker. L.T.673 (supra) and held that the proviso in Rule 14 of Order 6 does not insist on production or even creation of a power-of-attorney or written authorisation and even oral authorisation would be sufficient to constitute due authorisation. That was a case where a brother filed the suit for and on behalf of his brother residing at Madras on the basis of the oral authorisation to file the suit and the oral authorisation was found to be due authorisation.
7. Even in the first paragraph of the plaint it was specifically mentioned that the plain-tiffs husband, the power holder, is running and managing the affairs of the tex (sic) business and being the person acquainted with all the matters regarding the business, he is signing the plaint. The husband of the plaintiff had signed the plaint as the power holder of the plaintiff and as the manager of the business. Thus the plaintiff has explained the reason why the husband had signed the plaint. The learned counsel for the appellant argued that Ext.A1 power-of-attorney does not authorise the power-holder to institute any suit before any court and hence he was not competent to sign the plaint. As there was an allegation in the plaint that the plaintiffs husband had signed the plaint in pursuance to Ext.A1 power-of-attorney, it would be relevant to consider the provisions in Ext.A1 power-of-attorney so as to ascertain whether the donee was authorised to institute suits for the donor. The relevant portion of Ext.A1 reads:
"..... as my lawful attorney for me and on my behalf to conduct and carry on my business Textile Traders and he is authorised to do all things necessary for the proper conduct of my business in piece goods viz., "Textile Traders" and he is further authorised to open and operate bank account in the name of the business viz., Textile Traders, to borrow on my behalf for the business, to represent me before all offices concerned, to sign and "deliver for me proper receipts, to sign agreements and to receive all amounts due to me and to do and undertake all that is necessary for the proper conduct of the business and to do all other acts and things as effectually as I could do myself and I hereby further agree that all acts and things done by the said attorney on the strength of this power of attorney will be binding on me as if done by me personally and I further agree to ratify all such actions of my attorney."
Ext.Al power-of-attorney gives a general power to the plaintiffs husband to do all things necessary for the proper conduct of the business Textile Traders." Thereafter it specifies some of the acts to be done viz. to operate bank accounts in the name of the business on her behalf, to represent her before all offices, to sign and deliver proper receipts, to sign agreements and to receive all amounts due to her and to undertake all that is necessary for the conduct of the business. The donor of the power further agreed to ratify all actions taken by her attorney. The pleadings and evidence would reveal that the business of the plaintiff was run by her husband who signed the plaint. It is true that the power-of-attorney does not specifically authorise the power-holder to institute any suits before any court for realisation of the debts, but it authorises the power-holder to do all acts for the proper conduct of the business. It is settled law that when construing a document, the purpose for which it was executed has to be considered along with the terms of the document. What the power-of-attorney authorises depends on its terms and the purpose for which it was executed (relied on -- Syed Abdul Khader v. Rami Reddy (1979) 2 SCC 601 : (AIR 1979 S.C 553).
In Timble Irmaos Ltd., Margo v. Jorge Anibal Matos Sequeira (1977) 3 SCC 474: (AIR 1977 S.C 553). The apex court had settled the rules of Interpretation of a power-of-attorney. It was held:
The settled rules of interpretation applicable here to interpret the power of attorney are : firstly, that, a word used in a document has to be interpreted as a part of or in the context of the whole; secondly, that, the purpose of the powers conferred by the power of attorney have to be ascertained having regard to the need which gave rise to the execution of the document, the practice of the parties, and the manner in which the parties themselves understood the purpose of the documents: and thirdly, that, powers which area absolutely necessary and incidental to the execution of the ascertained objects of the general powers given must be necessarily implied."
It was further held :
"Implied powers cannot go beyond the scope of the general object of the power, but must necessarily be subordinated to it. In fact, in a case like the present one, where a general power of representation in various business transactions is mentioned first and then specific instances of it are given, the converse rule, which is often specifically stated in statutory provisions (the rules of construction of statutes and documents being largely common), applies. That rule is that specific instances do not derogate from the width of the general power initially conferred. To such a case the ejusdem generis rule cannot be applied."
A question had come up before the Apex Court in Atul Mathur v. Atul Karla (1989) 4 SCC 514 as to whether a criminal complaint can be filed before a criminal court in the absence of a specific provision to file such complaints in the power-of-attorney. There the apex court held at page 526:
The power-of-attorney, read as a whole, is seen to confer general powers on Mr. Atul Mathur and not merely special powers. It has been engrossed on stamp papers of the value of Rs. 50 and it is indicative of the nature of the deed. Though specific reference is made in the power of attorney only to the filing of suits and to matters relating to sales tax and central excise, there is a general clause which reads as follows:
"AND THE COMPANY HEREBY agrees that all acts, deeds, and things lawfully done by the attorney shall be construed as acts, deeds and things done by it and the company undertakes to ratify and confirm all and whatsoever that its said Attorney shall do or cause to be done by virtue of powers hereby given."
8. In the above case the power of attorney had been executed Just before the complaint was filed and it is stated in the complaint that Mr. Atul Mathur was filing the complaint on behalf of the company and he was duly authorised to do so and it was held that the High Court was therefore not right in construing the power of attorney as conferring only special powers and not general powers on Mr. Atul Mathur. A reading of Ext.A1 would clearly indicate that Ext.A1 was executed for the conduct of the business "Textile Traders" owned by the donor by her husband, the donee, and a general power has been given to the holder to do all matters for the proper conduct of the business in textiles. Thereafter certain acts were specified to be done and lastly there is the clause that all acts done by the power-holder shall be ratified by the donor of the power. A consideration of the circumstances and the purpose for which Ext.A1 was executed, and the entire provisions of the document would clearly indicate that the donees of the power had the authority to file suits for recovery of all the debts due to the business of the plaintiff. The husband of the plaintiff had proper authority as per Ext.A1 to institute suits to recover the debts due to the plaintiff from "Textile Traders" . In the present case, the suit is instituted by the plaintiff and the husband of the plaintiff signed the plaint by the authority bestowed on him as per Ext.A1 power-of-attorney. Hence the "husband of the plaintiff was fully competent to sign the plaint in pursuance of the authority conferred on him as per Ext.A1 power-of-attorney. It was alleged in the plaint that the husband of the plaintiff has signed the plaint in view of Ext.A1 power-of-attorney and the signing of the plaint by the power-holder of the party, would come within the ambit of 'for other good cause' in the proviso to Order 6 Rule 14 CPC.
9. Learned counsel for the appellant advanced another argument that as the power-of-attorney did not specifically authorise the husband of the plaintiff to institute the suits, he was not competent to sign the plaint as per Order 3 Rule 2, CPC. Order 3 deals with recognised agents and pleaders for appearing in courts. If the power-of-attorney specifically authorises the donee of the power to appear before court and conduct his cases as per Order 3 Rule 2, he will be entitled to appear and conduct the cases before court. In the present case the plaintiff had no case that the husband of the plaintiff was authorised to appear before court and to conduct her case. But her case was that her husband was authorised to conduct the business and to do all things for the proper conduct of the business and there was authority for him to institute suits for realisation of the amounts due from the defendants. As per Order 6 Rule 14 a plaint can be signed by any person authorised to sign and such authorisation need not be written, but even oral authorisation would be sufficient. Order 3 Rule 2 has no application in the case on hand as it deals with the appearance of parties through agents or pleaders in court and hence the above argument has no force.
10. During the course of the trial, the plaintiff filed I.A. 886/84 for allowing the plaintiff to sign the plaint in case there was any difficulty in the authorised agent signing the plaint. The trial court dismissed that application holding that it was barred by limitation. But the learned Single Judge in A.S. 310/88 allowed I.A. 886/84 permitting the plaintiff to sign the plaint. In the case in hand I.A. 886/84 was superfluous as the holder of Ext.A1 power-of-attorney had the authority to sign the plaint in view of the : different provisions in ExtA1. I.A. 886/84 was filed only as an alternate relief if in case it was found that the person who signed the plaint was not authorised to sign it.
11. The learned counsel for the appellant/defendant argued that the learned single Judge was wrong in relying on some of the passages from the Commentaries to the C.P.C. In allowing the plaintiff to sign the plaint. In allowing I.A. 886/84 the learned single Judge relied on the following passages from Mulla's Commentaries on the Code of Civil Procedure, 14th Edn., Vol II (at p. 997 Note I):
The signing of plaints is merely a matter of procedure. If a plaint is not signed by the plaintiff or by a person duly authorised by him in that behalf, and the defect is discovered at any time before Judgment, the Court may allow the plaintiff to amend the plaint by signing the same. If the defect is not discovered until the case comes on for hearing before an appellate Court, the appellate Court may order the amendment to be made in that Court. The appellate Court ought not to dismiss the suit or interfere with the decree of the lower Court merely because the plaint has not been signed. The omission to sign or verify a plaint is not such a defect as could affect the merits of a case or the Jurisdiction of the Court See Section 99. It can be set right even after the expiration of the period of limitation for filing the suit."
Even though the learned counsel for the appellant argued that the approach made by the learned single Judge in allowing LA. 886/84 was wrong, he could not substantiate the same. The signing of the plaint is only a matter of procedure and even the proviso to Order 6, Rule 14 permits an authorised person to sign the plaint and such authorisation can even be oral authorisation.
12. Section 99, C. P. C. says that no decree shall be reversed or modified for any error or defect or irregularity in any proceedings in the suit or affecting the merits of the case or the jurisdiction of the Court, Section 39 reads :
"No decree shall be reversed or substantially varies, nor shall nay case be remanded, in appeal on account of any mJsJoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case of the jurisdiction of the Court;
Provided that nothing in this section shall apply to non-joinder of a necessary party."
Rule 99A is a similar provision applicable in respect of the orders passed under Section 47, C.P.C. Sections 99 and 99A would clearly reveal that a decree or an order passed under Section 47 should not be reversed or varies on the sole ground of any error, defect or irregularity in any proceedings, in the suit, not affecting the merits of the case or the jurisdiction of the Court. That means a decree can be passed even if there is any defect or irregularity or error in any proceedings in the suit, which do not affect the merits of the case or jurisdiction of the Court. The non-signing of the plaint by the plaintiff or the signing of the plaint by a person not authorised is not a matter affecting the merits of the case or the Jurisdiction of the Court. The signing of the plaint, in fact, was only a procedural matter not affecting the merits of the case or the jurisdiction of the Court, and as such the trial Court itself should have allowed I.A. No. 886/84 and permitted the plaintiff to sign the plaint so as to rectify the defect, even if there was any such defect. The omission of the plaintiff to sign the plaint being an error not affecting the merits of the case or jurisdiction of Court, such defect or error or omission can be rectified even at the appellate stage. The learned single Judge allowed I.A. 886/84 and permitted the plaintiff to sign the plaint. Instead of allowing LA. 886/84 and allowing the plaintiff to sign the plaint before passing the judgment, the learned single Judge allowed I.A. 886/84 along with the judgment on appeal directing the plaintiff to sign the plaint on a date subsequent to the pronouncement of the judgment. We do not find any illegality or Irregularity in allowing the plaintiff to sign the plaint after the pronouncement of the judgment. In fact, the question does not have much relevance in the present case as the holder of the power of attorney had the authority to sign the plaint as per Ext. A1 power of attorney.
13. The learned counsel for the appellant argued that by permitting the appellant to sign the plaint, a right accrued to the appellant by efflux of time has been taken away. Even though such an argument was advanced , he could not substantiate the same. The plaint was filed before the Court within the period of limitation and by permitting the plaintiff to sign the plaint, an error or a defect not affecting the merits of the case has been allowed to be rectified, and as such no right had been accrued to the appellant by efflux of time, and there was no denial of any right. We find no merit in the above argument advanced by the learned counsel. A.S. 310 of 1988 was properly allowed by the learned single Judge and we find no reason to interfere with the above judgment.
14. The learned counsel for the appellant advanced another argument that the learned . single Judge was in error in disposing of C.M.P. No. 3984/1997 filed by the defendant for re-hearing of A.S. 310/1988, it was argued that A.S. 310/1988 was disposed of without hearing the defendant and hence he filed CMP 3984/97 for re-hearing of the appeal. Even though that petition was allowed on 21-8-1997, the learned single Judge issued only a clarification without hearing both sides again and disposing of the appeal afresh. The above order passed in C.M.P. 3984/97 was ordered to be annexed to the judgment in A.S. 310/88. A contention was raised in the written statement that the appellant had executed Ext. B1 mortgage as security for the credit purchases up to Rs. 10,000/- and a suit had to be instituted for realisation of amounts up to Rs. 10,000/- on Ext. B1 mortgage Ext. B1 was executed in favour of the husband of the plaintiff. Ext. B1 did not disclose anything regarding the business transactions and that it was executed as a security for the credit transactions in the textile business. There was no prayer in the plaint for getting a charge decree over the property mortgaged as per Ext. B1 transaction. The defendant raised a contention in the written statement that the suit was not maintainable in view of Ext. B1 mortgage. The trial Court found that the suit was maintainable notwithstanding the execution of Ext. B1 mortgage deed in favour of the husband of the plaintiff. The suit was decreed by the learned single Judge on the basis of the business transaction between the plaintiff and the defendant. As per the order in C.M.P. 3984/97, the learned single Judge had made it clear that the appellant will be entitled to put forward all his contentions if a suit is instituted on the basis of Ext. B1 mortgage. The right of the appellant to raise all contentions when a suit is instituted as per Ext. B1 mortgage is properly protected by the order in C.M.P. 3984/1997. We do not find any illegality or irregularity in disposing of C.M.P. 3984/97 and on that ground alone we do not intend to interfere with the decree passed by the learned single Judge in A.S. 310/1988.
15. In view of our finding that Ext. A1 power of attorney has given sufficient authority on the husband of the plaintiff to institute suits and to do all acts for the proper running of the business, it was not necessary for the plaintiff herself to sign the plaint and the order of the learned single Judge allowing the plaintiff to sign the plaint was superfluous. The learned single Judge had directed the plaintiff to sign the plaint within three weeks form the date of the order. The above direction was unnecessary and superfluous and as such we set aside that direction, as the plaint was signed by a person having sufficient authority to sign the same, and hence the plaintiff need not sign the plaint.
This appeal is devoid of any merits and is dismissed with the above direction.