Punjab-Haryana High Court
Municipal Council Through Its ... vs Raj Kumar on 27 July, 2006
Equivalent citations: (2006)144PLR389
Author: Mahesh Grover
Bench: Mahesh Grover
JUDGMENT Mahesh Grover, J.
1. In the suit filed by the appellant for recovery, the trial Court non-suited him only on the ground that the plaint was not signed by the Executive Officer of the Municipal Committee and that the resolution had not been produced authorising him to file the suit. In appeal the resolution was produced and duly proved showing that one Bohar Singh PW 3, who was posted as Executive Officer from 8.12.1998 to 31.8.2000 was authorised vide resolution No. 220 dated 28.9.1999 to file the suit on behalf of the Municipal Committee. Concededly, the plaint was not signed by Bohar Singh but was signed by the pleader.
2. The learned lower appellate Court also dismissed the appeal on the ground that the plain could not looked into as it was not signed by the competent officer.
3. It is contended by the learned Counsel for the appellant that non-signing of the plaint by the Executive Officer was merely a procedural irregularity and should not have come in the way as he had otherwise succeeded in establishing his claim to recover the amount and had also succeeded in fixing the liability of the respondent. In support of his contention he has relied upon a judgment of the Hon'ble Supreme Court , Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Anr.
4. On the other hand, learned Counsel for the respondent contended that once the plaint was not signed by the plaintiff, the whole suit would automatically fail.
5. I have heard the learned Counsel for the parties and am of the view that the present appeal deserves to succeed. The Hon'ble Supreme Court in the above mentioned judgment has held as follows:
16. An analogous provision is to be found in Order 6, Rule 14 C.P.C. 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 duty 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.
17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not 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 perpetuate injustice, by any oppressive or punitive use. The well recognized exceptions to this principle are:
i) whether 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 for 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.
6. Coming to the facts of the case, the resolution authorising the Executive Officer to file the suit has been proved before the lower appellate Court and the plaint was duly signed by the pleader. It has also been established that the Municipal Committee was entitled to recover a sum of Rs. 3,11,000/- from the respondent along with interest thereon. The rights of the appellant, therefore, could not be defeated on this mere technicality. The question of law that would arise in the present appeal would be as enunciated in para 9(iii), (iv) and (v) of the grounds of appeal and are reproduced as under:
(iii) Whether the civil suit filed by the plaintiff-appellant is liable to be dismissed for want of non-filing of the resolution No. 220 dated 28.9.1999 authorizing its Executive Officer to file the suit?
(iv) Whether the defect of non-filing of the resolution, which was merely an irregularity, stands cured on filing of the same alongwith the application for additional evidence.
(v) Whether the Courts below have erred at law while rejecting the application filed by the appellant for producing on record the Resolution No. 220 dated 28.9.1999?
7. For the reasons stated above, the present appeal is allowed, the judgments and decrees of the Courts below non-suiting the appellant only on the ground that the plaint was not signed by the competent person and that there was no resolution to that effect is set aside and the suit shall stand decreed.