Ganesh Parshad Aggarwal vs Sushila and Others

Alok Singh, J.—Plaintiff-Petitioner has filed present petition challenging the order dated 10.12.2007 passed by learned Civil Judge (Junior

Division), Bhiwani, thereby rejecting the plaint of the Plaintiff-Petitioner.

The brief facts of the present case are that Plaintiff-Petitioner has filed suit for declaration and mandatory injunction for a Haveli, situated at

M.C. Unit No. S-668, S-669, S-670 and S-671. Learned Trial Court has directed rejection of the plaint on the application of the Defendants on

the ground that Mr. Prem Chand Goyal, the power of attorney holder of the Plaintiff does have power of attorney only for S-669 and S-670 and

power of attorney does not have any mention about the M.C. Unit No. S-668 and S-671, hence, suit filed through the power of attorney holder

pertaining to Unit No. S-668 and S-671 is liable to be rejected.

I have heard learned Counsel for the parties and perused the record.

Learned Division Bench of Bombay High Court in the case of All India Reporter Ltd. and Another Vs. Ramchandra Dhondo Datar, has held

that defects in presenting, signing and verification of plaint is not a fatal and can be cured by amendment even after limitation. Learned Single Judge

of Allahabad High Court in the matter of Bal Mukund Persad Gupta and Others Vs. Mathura Prasad, , has also taken the view that defects in

filing, signing and verification of the pleading by the party is a procedural mistake and can be rectified subsequently. Allahabad High Court has

further held that rejection of the pleading on the ground that it has not been properly filed, signed and verified, is not proper.

Recently, Hon''ble Apex Court in the matter of Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh and Another, has also held that signing of

the memorandum of appeal is although mandatory but it is a procedural defect. Non compliance does not entail automatic rejection of appeal

without giving opportunity to rectify defect.

Applying the ratio of the above dictums, I am of the opinion that even if plaint filed for the Unit No. S-668 and S-671 seems to be not proper,

in view of the non-mentioning of these units in the power of attorney, however, learned Trial Court instead of rejecting the plaint should have called

the Plaintiff either to sign and verify the pleading or to execute another power of attorney in favour of the power of attorney holder to justify the

filing, signing and verification of the pleading.

Undisputedly, original Plaintiff has now given power of attorney in favour of Mr. Prem Chand Goyal who has earlier filed, signed and verified the

plaint pertaining to M.C. Unit No. S-668 and S-671, hence in view of this, defect, if any, stands cured. Consequently, impugned order is set aside.

Plaint is restored to its original number. Learned Trial Court is directed to proceed with the case in accordance with law. Both the parties are

directed to appear before the learned Trial Court for further orders on 15.12.2010.