Kerala High Court
V.S. Ramakrishnan vs P.M. Muhammed Ali on 9 December, 2009
Bench: K.M.Joseph, M.L.Joseph Francis
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RFA.No. 135 of 2008()
1. V.S. RAMAKRISHNAN, S/O.SANKUNNY
... Petitioner
Vs
1. P.M. MUHAMMED ALI, PADIYATH HOUSE
... Respondent
For Petitioner :SRI.V.CHITAMBARESH (SR.)
For Respondent :SRI.K.JAYAKUMAR
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :09/12/2009
O R D E R
K. M. JOSEPH &
M.L. JOSEPH FRANCIS, JJ.
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R.F.A. No. 135 of 2008
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Dated this the 9th day of December, 2009
JUDGMENT
Joseph Francis, J.
The appellant is the plaintiff in O.S. No. 321 of 2006 on the file of the Additional Sub Court, North Parur. The respondent herein is the defendant in that suit, which was filed seeking a decree for specific performance of an agreement entered into between the appellant and the respondent and for consequential reliefs.
2. Evidence and arguments in the suit were over. The respondent had raised a contention by filing I.A.No. 572 of 2008 that the suit is not maintainable on the ground that there is no verification in the plaint. The appellant filed I.A.No. 606 of 2008 seeking permission to incorporate verification. R.F.A. No. 135 of 2008 2 The court below, taking the view that the defect in verification is curable, permitted the appellant to incorporate the verification and dismissed I.A. No. 572 of 2008. Challenging the said order, the respondent filed W.P.(C) No. 4968 of 2008 before this Court and as per judgment dt. 12.2.2008 this court directed the court below to decide the legality and correctness of the verification. I.A.No. 728 of 2008 filed by the appellant seeking permission to verify the pleadings as provided under Order VI Rule 15 C.P.C. was allowed on 13.2.2008. Subsequently the defendant filed I.A.No. 759 and 760 of 2008 to review the order in I.A.No. 728 of 2006 and to decide the legality and correctness of the verification made by the plaintiff. I.A.No. 728 of 2008 was rejected. But, as per order in I.A. No. 760 of 2008 and the judgment, the court below rejected the plaint on the ground that there is no proper verification. Aggrieved by the order and judgment rejecting the plaint, this appeal is filed.
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3. Heard the learned counsel for the appellant and the learned counsel for the respondent.
4. On perusing the lower court records, it is seen that the plaint originally filed did not contain any verification as provided under Order VI Rule 15 C.P.C. That Rule reads as follows:
"Order VI. R.15. 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 by one of the parties pleading or by some other person proved 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.
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(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."
5. As per the Order in I.A.No. 606 of 2008 dt. 8.2.2008 verification of the plaint was done as follows:
"I, V.S. Ramakrishnan, (address), do hereby declare that all the facts contained in the plaint are true and correct."
The verification of the plaint was further corrected as per order in I.A.No. 728 of 2008 dt. 13.2.2008 as follows:
"I, V.S. Ramakrishnan, (address), do hereby declare that all the facts contained in paragraphs 1 to R.F.A. No. 135 of 2008 5 18 in the plaint are true to my knowledge belief and information. Dated this 20.7.2006."
The verification was incorporated on 13.2.2008. In this connection it is very relevant to note the verification of the written statement filed by the defendant, which reads as follows:
"All the statements made above in paragraphs 1 to 14 of the written statement are true to the best of my knowledge, information and belief."
6. Verification of the plaint and written statement is governed by Order VI Rule 15 C.P.C. The defendant filed I.A. 759 of 2008 to review the order in O.S.No. 728 of 2008 and I.A.No. 760 of 2008 was filed to decide the legality of the verification of the pleadings as per the order of this Court in W.P.(C) No. 4968 of 2008. As per the common order in the above I.As., the learned Sub Judge dismissed I.A. 759 of 2008 and allowed I.A. 760 of 2008, R.F.A. No. 135 of 2008 6 on finding that the pleadings in the plaint have not been properly verified in the manner known to law and such plaint cannot be treated as properly instituted one by virtue of Order IV Rule 1(3) of C.P.C. and the only option left before the court is to reject the plaint and the plaint was rejected for want of proper verification of pleadings. In the light of the order passed in I.A.No. 760 of 2008, the plaint is rejected for want of proper verification and pleadings, as per judgment in O.S.No. 321 of 2006 dt. 28.2.2008.
7. The learned counsel on both sides cited various decisions to substantiate their respective contentions. But for the purpose of adjudication of the matter, we need only to cite the decision of the Apex Court reported in R.N. Jadi & brothers v.
Subhashchandra ((2007) 6 SCC 420), in which it was held in paragraphs 10 to 14 as follows:
"All the rules of procedures are the handmaid of justice. The language employed by the draftsman R.F.A. No. 135 of 2008 7 of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situation in the ends of justice.
The mortality of justice at the hands of law troubles a judge's conscience and points an angry interrogation at the law reformer.
The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal R.F.A. No. 135 of 2008 8 justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence, processual, as much as substantive.
No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed.
` Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not R.F.A. No. 135 of 2008 9 the mistress, a lubricant, not a resistant in the administration of justice."
8. I.A.No. 728 of 2008 in O.S.No. 321 of 2006 was filed by the plaintiff to permit him to verify the plaint in accordance with Order VI Rule 15(2) C.P.C., which was allowed. Therefore, even if there is any defect in the verification of the plaint, there is no necessity to file a fresh petition for amendment of the plaint. In any view of the matter, the defect in verification is a curable defect. It is an irregularity, which can be cured with permission of the Court. It is not an incurable defect compelling rejection of the plaint itself.
9. On going through the verification in the plaint, after the order in I.A.No. 728 of 2008, we are of the view that the plaintiff has substantially complied with the provisions contained in Order VI Rule 15 C.P.C. Even then, in order to avoid the possibility of delaying the disposal of the suit, in which the trial is over, we are of R.F.A. No. 135 of 2008 10 the view that an opportunity should be given to the plaintiff to comply strictly with the relevant rule regarding verification of the plaint.
10. The affidavit required to be filed under the amended Section 26(2) and Order VI Rule 15(4) C.P.C. has the effect of fixing an additional responsibility on the deponent as to the truth of the facts stated in the pleadings. On amendment of the pleadings, a fresh affidavit shall have to be filed in consonance thereof. Since the defect, if any, in the verification is not a sufficient ground to reject the plaint under Rule 11 of Order VII or Order IV Rule 1(3) C.P.C., the learned Sub Judge is not justified in rejecting the plaint. Even if there is any defect in the verification of the plaint and in the affidavit accompanying the plaint, an opportunity has to be given to the plaintiff to cure the defect in the interests of justice.
11. Accordingly, this appeal is allowed. The order in I.A.No. 760 of 2008 rejecting the plaint and the judgment in O.S.No. 321 of R.F.A. No. 135 of 2008 11 2006 on the file of the Sub Court, N.Parur in rejecting the plaint on the basis of that order are set aside and the suit is restored to file and the case is remanded to the court below for disposal in accordance with law. The plaintiff is allowed to make necessary verification in the plaint, as provided under Order VI Rule 15 C.P.C. and also to file a fresh affidavit as provided under sub rule (4). The plaintiff is directed to comply with the above direction within two weeks after the appearance before the lower court. The parties are directed to appear before the Additional Sub Court, N.Parur on 15.1.2010. The parties are directed to suffer their respective cost in this appeal.
(K. M. JOSEPH)
Judge
(M.L. JOSEPH FRANCIS)
tm Judge
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