Delhi High Court
Scindia Potteries vs Sri Chand on 11 July, 1996
Equivalent citations: 1996 A I H C 5005, (1997) 1 CIVILCOURTC 682, (1997) 1 CIVLJ 759, (1997) 3 LJR 381, (1996) 3 RECCIVR 229
JUDGMENT J.K. Mehra, J.
(1) This is a second appeal arising out of the decision of the Trial Court and of the First Appellant Court whereby the application of the petitioner under Order 22 Rule 4 (5). C.P.C. read with S. 5 of Limitation Act for bringing on record the L. Rs. of the deceased respondent was dismissed and such dismissal was upheld respectively.
(2) The application was duly supported by an affidavit and was presented by counsel, who had his vakalatnama on record. Through oversight, the application itself was not signed cither by the appellant or the counsel. At the time, the application was taken up for hearing, the Arc dismissed the application on the sole ground that the application was not signed by the party or the counsel. Against this order, an appeal was filed which was dismissed in limine.
(3) In this case, it may be noted that counsel for the respondent did not file an application under Order 22 Rule 10-A, nor did he give any notice of any such application to counsel for the appellant and the fact of the death of the respondent escaped notice of appellant's counsel and he could not come to the Court on account of lawyer's strike. However, the question of delay appears to have not been considered and the Court has dismissed the application only on the sole ground of it having not been signed. Counsel at the Bar stated that his request both before the Trial Court as well as before the First Appellate Court to allow him to sign the application was also not granted. This position is not disputed before me by the respondent's counsel.
(4) I think, both the Courts below have committed a serious error in not appreciating that the omission to sign any pleading is mere procedural lapse and does not, in any manner. affect the jurisdiction of the Court and this lapse could be cured by permitting the party or his authorised agent to sign the application/ pleading. In this connection, a reference may be made to Sarvjit Singh vs. All India Fine Arts Craft Society 1989 (2) D.L. 360. To the same effect, is A.I.R. Ltd. vs. Ramchandra . In fact, Bombay High Court in Dahyabhai vs. Bahaji, dissented from its earlier judgment rendered in Chunni Lal vs. Kanmal Lal Chana Air 1944 Bombay 201 and laid down that omission to sign or verify the plaint is not such a defect as could affect the merits of the case or the jurisdiction of the Court and it could be set right even after the expiration of the period of limitation for filing the suit. In fact, there are authorities which go to the extent that in case such omission is discovered before the judgment, then the Court trying the case could allow signing at any stage to the suit and if the defect is discovered before the Appellate Court, the Appellate Court could order the amendment to be made in that regard and Appellate Court ought not to dismiss the suit or interfere with the decree of the lower Court merely because the plaint was not signed.
(5) I am afraid, both the Courts below have lost sight of the aforesaid position of law and their judgments cannot be sustained and are set aside. At this stage, Mr. Sharma, counsel for the appellant has made another request amounting to an oral application in question. This could be done by the Trial Court. I accordingly, allow the oral application of Mr. Sharma and direct the Trial Court to permit Mr. Sharma to sign the application in question.
(6) The petition stands disposed of in the above terms. In the circumstances of the case, there will be no order as to costs.