GOKUL NATHJI Vs. RAMAN LALJI

JUDGEMENT

(1.) This was a suit on a promissory note. The defendant, apart from his defence on the merits, raised in his written statement a plea that one Bhiki Mal, who purported to sign and verify the plaint in the capacity of general attorney of the plaintiff, had no authority to do so. The learned Munsif, in framing an issue on this plea, went a step further, He seems to have felt some doubt as to whether there had been a regular and valid presentation of the plaint in his court, He accordingly framed an issue as to whether the plaint had been "properly signed, verified and presented ". In determining the issue, however, he dealt only with the question of signature and verification of the plaint, and held that Bhiki Mal had no authority to sign or verify the plaint. He dismissed the suit. On appeal by the plaintiff, the learned District Judge has reversed this finding and remanded the suit for decision on the merits. The appeal before us is against this order of remand. On the question of verification the lower appellate court was obviously right, as is sufficiently apparent from a perusal of the rules on the subject. With regard to the question of signature the learned District Judge has quoted authority of this Court in support of the course adopted by him. He points out that if there was any technical defect in the signature, it was at the most an irregularity capable of being cured by a subsequent amendment. We have been referred to no authority to the contrary, and the case relied upon by the court of first instance is not in point. What has been strenuously contended before us here is that there has been no valid presentation of the plaint. The point has not been decided by either of the courts below. The plaintiff is a resident of Bombay, and Bhiki Mal aforesaid is his local agent for the management of certain property in the Muttra district. So far as we can judge, the position of Bhiki Mal might well be considered to fall within the definition of a "recognized agent" contained in Clause (b) of Order III, Rule 2, of the Code of Civil Procedure, In any case, it seems to us that the manner in which this question of presentation has been dealt with is unsatisfactory. If the learned Munsif felt any serious doubt as to whether there had been a valid presentation of the plaint in his court he could have called upon the plaintiff to look into the matter and given him an opportunity to correct any irregularity of a technical nature which might have occurred. In framing an issue on the point, and one which went outside the pleadings, the learned Munsif seems to have adopted a course which it is difficult to support. The lower appellate court has concluded from subsequent proceedings that there is fair reason to infer that the plaintiff was cognizant of the action taken by Bhiki Mal in filing this suit. If it is regarded as a question of fact, which it is apparently necessary to determine before justice can be done to the parties, there would be no objection to further evidence being taken on the point in the court of first instance. On the point actually raised before him, the order of the District Judge seems to us clearly right, and we are certainly not disposed to interfere with the order under the circumstances already set forth by reason of the difficulty now pressed upon our notice on the question of presentation.

(2.) It seems desirable with reference to cases like this, which are not of infrequent occurrence, to add a few general observations. Where the authority of a plaintiff to have a suit brought at all and to allow his name to be used as a plaintiff in the case, is seriously questioned, that is a matter of principle which it is a court s duty to decide; and unless it is shown that the plaintiff has in fact authorized the suit, either impliedly or expressly, clearly a court ought not to grant a decree in his favour, and the Privy Council case reported in I.L.R. 19 Calc. 678, is an illustration of that principle. But where authority has been given by the plaintiff in some form or another, and the question is whether the agent has complied with the rules as laid down in the Code, that is not a question of principle at all, but a question of practice and procedure. It is the first court s business to see that its own rules are complied with, and in our view it is not right that the first court should leave the investigation of that question to the appellate court. If a defect is brought to its notice by its own officer-and it is duty of an officer of the court, if there is any defect in procedure or in the frame of the suit or in similar matters, to draw the attention of the Judge to the fact-or by the parties, or one of them, the Judge ought to put the defaulting party on terms to correct the defect. If the defaulting party, on the defect being pointed out to him, declines to obey the court s order to correct it, obviously he has only himself to thank for any penalty which may ensue. But in our view a court ought not to dismiss a suit without at any rate giving the defaulting party an opportunity of correcting the defect in procedure, if there be any. And the reported cases show that courts of appeal have been driven to indulge in refinements in order to prevent the ends of justice being defeated on a point of this kind. It is not in the interests of the litigants themselves that a court should be astute to defeat a claim, not on a consideration of the merits, but on some technical point of procedure. There is no defect in procedure which anybody is capable of making which cannot as a rule be amended and compensated for by an order as to costs.

(3.) We dismiss this appeal with costs.