Manohar Pershad, J.@mdashThis is an appeal against the order of the court below dated 27th July, 1953, rejecting the plaint. The facts which give rise to this appeal are that Radhakishen filed a suit for declaration against Wali Mohammed. This plaint was signed by one Balkishen said to be the ''muktar'' of the Plaintiff. An interim petition for stay filed by the'' Plaintiff was signed by one Rameshwar. The court found that the plaint and the petition were sighed by different persons. Therefore, it directed the Plaintiff to file the power of attorney of Balkishan. The Plaintiff filed the general power of attorney; but the court after perusing the same came to the conclusion that it did not give any power or authority to Balkishen to sign the plaint, and rejected the plaint holding that the power of attorney was defective. It is this order that is challenged in appeal now.
2. The first contention advanced on behalf of the Appellant is that the court below has erred in coming to the conclusion that the power of attorney did not authorise Balkishen to sign the plaint. The second contention is that Order 7 Rule 11 does not apply to the case and the court below has fallen into an error by rejecting the plaint. On behalf of the Respondent, it is contended that the general power of attorney given to Balkishen authorised him only to take action in matters arising out of Akola transactions and as the suit action does not relate to Akola transactions, the court below rightly held that the general power of attorney was defective.
With regard to the second contention it is urged that Order 7 Rule 11 is not exhaustive in itself, and under the provisions of the said Act the court has the power to reject the plaint. It is further urged that if the order does not amount to a rejection of the plaint under Order 7 Rule 11, there is no reason why the order should not be treated to be one under Order 17 Rule 3.
3. We have given careful consideration to the arguments advanced. In the first argument of the Appellant we do not see any force. The general power of attorney clearly refers to Akola transactions. There is nothing in the plaint to show that the suit matter relates to any Akola transactions. Shri Nandapurkar, the learned advocate for the Plaintiff very candidly conceded that the plaint does not show that the subject-matter of the suit relates to Akola transactions.
When the general power of attorney does not authorise Balkishen to take action in other transactions excepting Akola transactions, we fail to understand how he could sign the present plaint. We are therefore of the opinion that the general power of attorney given does not embrace the suit transaction and cannot therefore help the Appellant.
We do not altogether agree with the second contention of the learned advocate that the plaint could, not be rejected under Order 7 Rule 11, CPC No doubt Order 7 Rule 11 gives instances of the rejection of the plaint in cases of non-disclosure of causes of action, undervaluation of the relief claimed, insufficiency of court-fees or claim being barred by any law; the instances given, in our opinion, can- not be regarded as exhaustive of all the cases in which a court can reject a plaint or as limiting the inherent powers of the court in respect thereof.
4. The question whether a plaint could be rejected under Order 7 Rule 11 came up for discussion in the various High Courts of this country. The Allahabad High Court in the case of Rajit Ram v. Kalesharnath 18 All 396(A) held:
"A defect in the verification of a plaint will not of necessity result in the dismissal of the suit" ; In that case the plaint was filed by three joint Plaintiffs and was verified by each one of them, but I the verification was not in the proper form and not in consonance with the provisions of the Code.
5. A similar view has been taken by the same court in the case of Fateh Chand v. Mansab Rai ILR All 442(B) and Ram Krishna Das Jawahar Lal, Firm v. Firm Mutsaddilal Murli Dhar (AIR 1942 All 170 V 29) (C). In the case of Basdeo v. John Smidt 22 All 55(FB)(D) it has been held that the defect can be cured by amendment and failure to cure the defect entails rejection u/s 54, Code of Civil Procedure
6. The Madras High Court in the case of Arunachellam Chetty v. Prabhayya Chetty 17 Ind Cas 580(Mad) (E), held that want of signature and verification does not entail rejection of the plaint because such verification and signature can be supplied at any stage of the proceedings.
7. The Nagpur Judicial Commissioner''s Court in the case of Durgagir v. Kollu 10 Ind Cas 731(Nag) (F) following the decision of the Allahabad High Court in the case of 22 All 55 (D) held that rejection of plaint is not covered by Order 7 Rule 11, Code of Civil Procedure.
The Punjab Chief Court in the case of Nandlal v. Shanker 11 Ind Cas 842 (p&h) (G) held:
When a Plaintiff omits to sign the plaint, but signs only the verification, the plaint ought to be'' returned for amendment or it should be amended in the open court; the plaint ought not to be rejected.
9. In the case of
10. There is no direct authority of this Court: on this point. But there is authority of this Court to show that Order 7 Rule 11 is not exhaustive in itself, vide Gursidava v. Harsh Reddy 38 D L. R. 393 (I). Further support is lent to this by cases of Durgadihal Das v. Anoraji 17 All 29 (J) and Hukumchand Baid v. Kamala Nand Singh 33 Cal. 927 (K), wherein it has been held that the Code is not exhaustive. No doubt in the cases 17 Ind Cas 580 - (Mad) (E) 10 Ind Cas 731 (Nag) (F) and 11 Ind Cas 842 (G) it has been held that want of signature and verification does not entail rejection of the plaint but in these cases there is no detailed, discussion as to whether the instances given in Order 7 Rule 11 are exhaustive and whether or not the court has the inherent power.
If what has been held in these cases is taken," as a general rule, as contended, to mean that rejection of the plaint is not contemplated by Order 7 Rule 11, with due respect to the learned Judges, I beg to differ. The three Allahabad cases - 18 All 396 20 All 442 (B) and (AIR 1942 All 170 29) (C), do not contemplate cases of rejection of the plaint; in fact, there is no discussion whatsoever whether the plaint could be rejected or not, under Order 7 Rule 11. Of course, in the other case of the Allahabad High Court reported in 22 All 55 (D) there is a suggestion at pages 61 and 62 of the report that failure to remedy the defect entails rejection u/s 54 of the old Code of Civil Procedure.
I may at this stage point out that u/s 54 of the Code of 1882 there was a special provision for rejection of the plaint on failure to amend the plaint. What all has been held in the above cases is that want of signature and verification is a defect not affecting the jurisdiction and entailing the rejection of the plaint. There is no discussion whatsoever as to what should be the proper order in the case of a failure to cure the defect.
The said cases, therefore, are of no avail so far as the point in question is concerned. I am of the opinion that only two courses are open to the court in the case of a failure to cure the defect. It can, in the first place, act under Order 17 Rule 3 if the case falls under that provision and it for any reason, the court cannot take any action under Order 17 Rule 3, it has the power to reject the plaint under Order 7 Rule 11, CPC or under its inherent powers.
11. I, therefore, do not agree that the court has no power either under Order 7 Rule 11 or inherent in itself to reject a plaint. No doubt, before rejecting the plaint the proper procedure for the court would be to determine the point first whether the person signing the plaint was competent.
If the court comes to the conclusion that the person signing the plaint was not authorised, it should call upon the Plaintiff to cure the defect and on his failure to do so, proceed to decide the question forthwith and to dismiss it under Order 17 Rule 3 if the case falls within the said provision or to reject the plaint under Order 7 Rule 11 or under its indifferent(sic) powers. Order 6 Rule 14 which refers to the verification of the pleadings is only a matter of procedure. An omission to sign the plaint is a mere irregularity and defect of procedure, and does not affect the jurisdiction of the court.
Further such an omission or mistake in the signature is not fatal to the suit and is capable of being cured by calling upon the party to remove the defect. Order 17 Rule 3 would be applicable if time has to be given to the party to do something. ''There is nothing on record to show that after declaring the General Power of attorney defective, the court granted the Plaintiff any time to remove the defect.
It is only on failure to perform to do something which the court had directed that the court has been given a discretion to proceed to decide the suit forthwith. The court can only proceed to decide the suit when there is sufficient material on record. Admittedly there is no such material on record and as such Order 17 Rule 3 would not be applicable. Further the rule in my opinion is permissive and not mandatory as 3hown by the words:
the court may proceed to decide the suit forthwith.
The stringent provisions thereof cannot be applied unless the facts do not admit of the application of any other provision of the Code. No doubt the general power of attorney given to Balkishen was defective, but the court was not justified in rejecting the plaint before calling upon the Plaintiff to cure the defect.
If the Plaintiff has, however, failed to cure the defect the court does certainly have power to reject the plaint. In the present case the court below without calling upon the Plaintiff to cure the defect rejected the plaint which is improper.
12. The appeal is, therefore, allowed, the order of the court below is set aside. The case is remanded to the trial court with a direction that it should, after giving time to the Plaintiff to sign the plaint personally or through its duly authorised agent, proceed with the case according to law. The Respondent, will be entitled to costs of this Court, irrespective of the result of the suit as I find that the Plaintiff has not been diligent.
Bilgrami, J.
13. I have had the advantage of perusing the judgment of my learned brother Rai Manohar Per- shad, J. The facts of the case have been set out by him in his judgment, and need not be reiterated. I agree with him in the final conclusion at which he lias arrived. I also entirely agree that the power of attorney dated 14th April, 1948, does not confer on Radha Kishen, who has signed the plaint, the power to file a suit on behalf of the Plaintiff in the Court of the District Judge at Nizamabad.
The power conferred therein is confined to the suits which may arise from transactions which per- tain to the Akola shop. The suit transaction admittedly does not relate to that shop. I only wish to add that in my opinion considering the circumstances of the present case, rejection of the plaint under Order 7, Rule 11, CPC is not correct,. The plaint cannot be rejected under this rule merely because it is in some way defective, or not strictly in accordance with law. It is true that the grounds for rejection given in Order 7, Rule 11 are not exhaustive, and the plaint can be rejected for reasons not specified in cls. (a) to (d) of Rule 11, but then, defect for which it is rejected should not be such as is curable by amendment, and nothing more than an error of procedure.
To my mind if the plaint has been signed by a person not duly authorised, but who on account of misinterpreting a certain deed is under the impression in good faith that he is duly authorised, as in this case, the plaint cannot be rejected under Order 7, Rule 11. The defect is a mere irregularity, and does not affect the jurisdiction of the Court, and can be cured by the party or his duly authorised agent signing and verifying it. See in this regard Wali Mohd. v. Ishaq Ali AIR 1931 All 507 (FB) (L) in which the same view was expressed and it was held, that, the defect, can be cured by amendment and is a mere irregularity. In this case, the plaint was signed by the guardian though the Plaintiff has, attained majority. In 20 All 442 (B), it was held, that such defect cannot be fatal to the suit, and can be cured later by the proper person signing it. I may here also refer to palaneappa Chetty v. Aruna, challarn Chetty (AIR 1914 L B 191 (2) V 1) (M), in which also it was held that if the pleading was signed by an authorised person, the Court may permit the proper person to sign it later. For rejection of the plaint under Order 7, Rule 11 on any grounds other than those specified, the defect must be such as would affect the jurisdiction.
I wish to confine myself to the question which arises from the particular facts of the present case in which the agent appears to have filed the suit under f, bona fide belief that he is competent to do so. What the Court should do if the defect is persistently not cured by the Plaintiff In spite of obtaining adjournments, or when the agent acts in bad faith, are questions purely hypothetical which do not arise in this case, and I am unwilling to express any opinion about them.
14. I agree in conclusion that the proper course for the Court was to give time to the Plaintiff to sign the plaint personally or through his duly authorised agent, that this appeal should be allowed and the case remanded to the Court below for that purpose and that the Respondent will be entitled to costs of this appeal irrespective of the result.
