Delhi District Court
By This Order I Shall Dispose Of The ... vs Union Of India on 16 February, 2012
1 CS No. 346/12
Suit No 346/12
16.02.2012
Present: Counsels for the parties.
Arguments heard.
1.By this order I shall dispose of the application of the defendant filed under Order 6 Rule 14 & under Order 8 Rule 10 read with Section 151 of CPC. In this application, it is contended that the written statement filed on behalf of the defendant is neither signed by the defendant nor by his counsel and the same has not been verified by the defendant. The provisions of Order 6 Rule 14 and 15 of CPC are mandatory in nature. The defence of the defendant is liable to be struck off and the claim of the plaintiff may be decreed, as per law. It was further argued that the defence filed by the defendant in the absence of mandate given by law, is not a valid defence in the eyes of law and as such in the absence of any written statement or rebuttal by the defendant, the suit of the plaintiff is bound to succeed as per 2 CS No. 346/12 law. In support of these contentions ld. counsel for the plaintiff has placed reliance on the law laid down by the Hon'ble Supreme Court in A.K.K. Nambiar vs. Union of India AIR 1970 (SC) 652.
2. On the other hand in reply to the application it is contended that the application is not maintainable. Though the written statement has not been signed by the defendant or his pleader. The reply to the application under Order 39 Rule 1 and 2 CPC was signed by the defendant and his counsel and the affidavit was also signed. Due to inadvertent technical mistake the written statement could not be signed. However, the omission/defect is neither deliberate nor intentional and it was not in the previous knowledge of the defendant. This defect was neither pointed earlier. The case is at the very last stage and the entire evidence has been led. The provisions of Order 6 Rule 14 and 15 of CPC are directory in nature and it is a procedural irregularity which can be cured at any stage. Ld. Counsel for the defendant 3 CS No. 346/12 argued that the law so relied by the Counsel for the plaintiff does not apply to the present case. The defendant also placed the reliance on the law laid down in Uday Shankar Triyar vs. Ram Kalewar Prasad Singh and anr, 2005 IX, A.D. (SC) 688, Bhikaji Keshao Joshi and anr. vs. Brij Lal Nand Lal Biyani and ors. AIR 1955 (SC) 610 and also relied on Kailash Singh vs. Hera lal Dey AIR 1994 Gauhati 12. Thus the defendant prayed that the opportunity to cure this technical defect may be given.
3. I have considered the arguments and the material on record. The present case was filed on 11.07.03. Thereafter, the defendant filed written statement and the plaintiff also filed replication to said written statement. Even in the replication no such objection was ever taken. Thereafter, the parties have also concluded their evidence. Finally defendant evidence was closed on 09.08.10. The objection of the plaintiff is that the defect under Order 6 Rule 14 and 15 of CPC cannot be cured. In this respect the plaintiff placed 4 CS No. 346/12 reliance on the law laid down by the Hon'ble Supreme Court in AAK Nambiar vs. Union of India and another AIR 1970 (SC) 652. In this judgment the Hon'ble Apex court has held that:-
" The reasons for verification of affidavits are to enable the Court to find out which facts can be said to be proved on the affidavit evidence of rival parties. Allegations may be true to knowledge or allegations may be true to information received from persons or allegations may be based on records. The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. In essence verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence. In absence of proper verification, affidavits cannot be admitted in evidence" .
4. In the case before Hon'ble Supreme Court, the proposition was regarding verification of the affidavit. The 5 CS No. 346/12 judgment so relied by the defendant given by Hon'ble Supreme Court in "Uday Shankar Triyar vs. Ram Kalewar Prasad Singh and Anr", 2005 IX AD (SC) 688, squarely applies to the question of law at hand. It has been held that, " An analogous provision is to be found in Order 6 Rule 14 CPC which requires that every pleading shall be signed by the party and his pleader, if any. Here again, it has always been recognized that if a plaint is not signed by the plaintiff or his duly authorized agent due to any bona fide error, the defect can be permitted to be rectified either by the trial court at any time before judgment, or even by the appellate court by permitting appropriate amendment, when such defect comes to its notice during hearing.
Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not be entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a hand-maiden to justice, should never be made a tool to deny justice or 6 CS No. 346/12 perpetuate injustice, by any oppressive or punitive use " The well recognized exceptions to this principle are:-
(i) Where the Statute prescribing the procedure, also prescribes specifically the consequence of non- compliance.
(ii) Where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;
(iii) Where the non-compliance or violation is proved to be deliberate or mischievous;
(iv) Where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court.
(v) In case of Memorandum of Appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant" .
5. According to this ruling, the defect of Order 6 Rule 14 and 15 of CPC can be permitted to be rectifed at any time before the judgment when such defect come to its notice during the 7 CS No. 346/12 hearing. The arguments of the Ld. Counsel for plaintiff that this judgment does not apply to the fact of the present case as written statement was not signed & verified is without merits and the present application itself has also been filed under Order 6 Rule 14 and 15 of CPC. The Hon'ble Supreme Court has laid down the principle governing the cure of technical defect vis-a- vis Order 6 Rule 14 and 15 of CPC with respect to pleadings. The principle laid down by the Hon'ble Supreme Court is that the court should not allow the technical defects to come in the way of delivering justice. Even otherwise the parties have lead their evidence on the basis of the aforesaid written statement. Even the plaintiff has filed replication and lead evidence on the basis of knowledge of defence as laid out in the written statement. In Kailash Singh vs. Hira Lal Dey, AIR 1994 Gauhati 12, Gauhati High Court also categorically held that provision of Order 6 Rule 14 and 15 of CPC is not maintainable and any defect can be cured at any stage. Therefore, where there 8 CS No. 346/12 were allegations that the plaint was not signed and verified as per provisions of Order 6 Rule 14 and 15 of CPC but the plaintiff while during deposition was found to have made out the needs in the plaint the plaint was not liable to be rejected merely on the ground the plaint was not merely signed and verified properly. Therefore, the abovesaid judgment also applies to the present case as the defendant has also led his evidence to prove his defence. In no manner there can be two sets of different parameters with respect to plaint and written statement vis-a-vis Order 6 Rule 14 and 15 of CPC.
6. In M/s Scindia Potteries Services Limited Vs. Sri Chand and ors. 1996 AIHC 5005 (DHC) it has been held 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 cured by permitting the party or its authorised agent to sign the application/pleadings. It was further held, ommission to sign or verify the plaint is no such a defect as could effect the merit of the case or 9 CS No. 346/12 jurisdiction of this 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 ommission discover 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 appellant court. The appellant court could order the amendment to be made in this regard and the appellant court ought not to dismiss the suit or interfere with the decree of the lower court merely because the plaint was not signed".
7. Thus, in view of the aforesaid discussion, as per law laid down by the Hon'ble Supreme Court and the Hon'ble Gauhati High Court, the defence of the defendant cannot be struck off especially when entire defendant evidence has been lead, that too on the technical ground, that written statement was not signed or verified by the defendant.
8. Thus, the defect is curable, however, at the same time it 10 CS No. 346/12 cannot be forgotten that the defendant has also remained oblivious of this technical defect and he never took any step to object. Even though, the defendant could not have gained anything out of the technical defect and no prejudice will be caused to the parties for contesting the case on merit if the defect is cured, but the aforesaid technical defect has caused considerable delay in disposal of the case.
9. Accordingly, the defendant is given an opportunity to cure the defect by filing amended signed written statement as per provision of CPC subject to payment cost of Rs. 2500/- to be paid to the plaintiff.
10. To come up for filing amended written statement as well as final arguments and payment of costs on 14.03.12. Announced in the open court (SUSHANT CHANGOTRA) On 16.02.12. CIVIL JUDGE-06 (WEST)