All India Reporter Ltd. v. Ramchandra Dhondo Datar

Raju, J.:— I would like to add the following observations on the question of limitation.

2. In order to appreciate the points of law involved, it is necessary to state a few relevant facts:—

In the plaint two plaintiffs were named, namely, (1) All India Reporter, Limited, Bombay, and (2) Shri V.V Chitaley. The plaint was signed by Shri V.V Chitaley (plaintiff No. 2) and by one S.B Ghushey who signed as agent to plaintiff No. 1. It was also verified by S.B Ghushey as agent to plaintiff No. 1. The plaint was filed on February 18, 1949, one day prior to the expiry of the period of limitation. The plaint was presented by Shri Shidhaye, advocate, whose power was signed by V.V Chitaley and S.B Ghushey who signed as agent of plaintiff No. 1. Along with the plaint, a power-of-attorney by A.I.R Limited, in favour of S.B Ghushey, dated May 1, 1946, was filed. After the date of this power-of-attorney and before the date of the suit, A.I.R Limited was converted into a public limited company in 1948.

3. Objections having been taken by the defendant on the ground that the plaint was not properly signed or verified, the trial Court held on April 9, 1951, that the plaint was not properly signed and verified on behalf of plaintiff No. 1 and ordered that the plaint should be properly signed and verified by someone authorized on behalf of plaintiff No. 1, either under O. VI, r. 14, or under O. XXIX, r. 1, Civil Procedure Code. In compliance with this order dated April 9, 1951, S.B Ghushey again signed the plaint and again verified it on April 24, 1951, after filing a fresh power-of-attorney from plaintiff No. 1 dated April 18, 1951. Against the order of the trial Court dated April 9, 1951, holding that the plaint was not properly signed and verified on behalf of plaintiff No. 1, a revision application was filed in the High Court (Civil Revision No. 395 of 1951) which was decided on January 18, 1952. The High Court held that no question of jurisdiction was involved in the revision application as the trial Court undoubtedly had power to ask the party to rectify a defect in regard to signing and verification of the plaint. The High Court observed that the trial Court had not framed an issue on the point of limitation, and therefore the High Court did not decide the question of limitation in revision, but left it open to the defendant to plead the bar of limitation.

4. Accordingly the defendant pleaded the bar of limitation before the trial Court and this contention was upheld by the trial Court on the following grounds:—

(1) The signature of Ghushey on the plaint and its verification by him in his capacity as agent of the A.I.R Limited (plaintiff No. 1) under a power given by it when it was a private Limited Company do not enure for the benefit of the A.I.R Limited on the date of the institution of the suit when it had become a public Limited Company.

(2) The plaint can be signed and verified by a person orally authorized by a plaintiff to do so, but in the instant case plaintiff No. 1 is a company. Under Articles 153(7) and 156 of the Articles of Association of the Company only the Managing Director of the plaintiff Company had power to institute suits for plaintiff No. 1, and it is nowhere shown that he had power to authorise somebody else to sign pleadings for plaintiff No. 1. Under Article 153(19) of the Articles of Association of plaintiff No. 1, read with Article 156, the Directors could confer a power of attorney under the seal of the Company upon any person to be attorney of the Company for the purposes of the powers conferred on the Directors under Article 152 which include a power to institute and conduct suits under Article 153(7). The power of attorney of Ghushey dated 18-4-‘51 does not bear the seal of the Company. An oral authorization would also not be valid in view of the Articles of Association.

(3) Even if the signature of Ghushey on the plaint for plaintiff No. 1 was valid, his verification is neither proper nor authorized.

(4) On 18-2-‘49, the date of the plaint, it cannot be said that Ghushey was acquainted with the facts of the case as required by O. VI, r. 15, Civil Procedure Code. So verification of the plaint by Ghushey was not proper.

(5) The plaint was also not properly presented on behalf of plaintiff No. 1 who alone had interest in the suit, the other plaintiff, namely, plaintiff No. 2, being only a formal plaintiff.

(6) It was only on 24-4-‘51 that the plaint was properly signed and verified by Ghushey under the power of attorney from plaintiff No. 1 after its conversion into a public Limited Company. As the plaint must be deemed to have been properly presented on 24-4-‘51 and as the cause of action accrued on 19-2-‘46, the suit was clearly barred by limitation as the period of limitation is admittedly three years.

5. The question of limitation, therefore, involves the following points:—

(1) Who has to sign the plaint, who has to verify it, and who has to present it?

(2) If there are any defects or irregularities in regard to signing of the plaint or its verification, can these defects be removed on a subsequent date after the hearing of the suit has commenced? Can they be removed in appeal? If so, does the removal of the defect or irregularity relate back to the original date of presentation of the plaint? In other words, is the suit deemed to be instituted on the original date or on the date on which the defects or irregularities in regard to the signing etc. of the plaint are removed?

(3) In regard to a private Limited Company which is converted into a public Limited Company before the date of the suit, can a person holding power-of-attorney of the former sign a plaint and verify it on behalf of the latter?

(4) Would the decision of these questions depend on whether the plaintiff is a sole plaintiff or is one of several plaintiffs? Should the rules regarding signature, verification and presentation of the plaint be complied with by all plaintiffs?

6. I shall discuss the questions of law at issue first with reference to the provisions of the Civil Procedure Code and then with reference to decided cases. Our attention has not been drawn to any case of the Supreme Court on these points.

7. The relevant provisions of the Civil Procedure Code must be borne in mind. They are: O. IV, r. 1; O. IV, r. 2; O. VI, r. 14; O. VI, r. 15; O. III, r. 1; O. III, r. 2; and O. VII, r. 11.

O. IV, r. 1:—“Every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf.”

O. IV, r. 2:—“Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.”

O. VI, r. 14:—“Every pleading shall be signed by the party and his pleader (if any):

Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf.”

O. VI, r. 15:—“(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.”

O. III, r. 1:—“Any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf:

Provided that any such appearance shall, if the Court so directs, be made by the party in person.”

O. III, r. 2:—“The recognised agents of parties by whom such appearances, applications and acts may be made or done are—

(a) persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties;

(b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts.”

O. VII, r. 11:—“The plaint shall be rejected in the following cases:—

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued,…;

(c) where the … plaint is written upon paper insufficiently stamped,…;

(d) where the suit appears from the statement in the plaint to be barred by any law.”

8. Order VI, r. 14, requires that every pleading i.e a plaint or a written statement, shall be signed by the party and his pleader, if any, provided that where a party pleading is, by reason of absence or for other good cause, unable to sign, the pleading may be signed by any person duly authorised by him. Order VI also contains provisions as to what a pleading should contain and should not contain; for instance, O. VI, r. 2, provides that pleadings should contain in a concise form a statement of all the material facts but should not state the evidence by which material facts are to be proved. Order VII, r. 1, enumerates some essential particulars to be stated in a plaint.

9. Order VI, r. 14, provides that in certain circumstances a pleading may be signed by any person duly authorized by the plaintiff to sign the plaint or to sue on his behalf. The expression “signed by any person duly authorized by him to sign the same” in r. 14 need not be restricted to written authorizations. If the authorization is proved, even an oral authorization should be taken as sufficient and there is no reason to read O. VI, r. 14, as requiring written authorization or a power-of-attorney. At this stage, the provisions of O. III, r. 1, must also be considered. Order III, r. 1, reads as follows:—

“Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf:

Provided that any such appearance shall, if the Court so directs, be made by the party in person.”

10. Order III, r. 2, describes who the recognized agents, referred to in O. III, r. 1, are. Order III, r. 2, has been amended by the Bombay High Court. But this amendment did not govern the plaint in the instant case when it was filed.

11. Order III, r. 1, applies only to appearances, applications, or acts in or to any Court, required or authorized by law to be made or done by any party in such Court. The signature on a plaint is not an appearance, or application, or act in or to any Court. The presentation of a plaint may be an act to or in a Court, but the mere act of signing a plaint would not be an act in or to a Court. A plaint can be signed outside the Court. It would not, therefore, come within the scope of O. III, r. 1, and O. III, r. 2. The presentation of a plaint in a Court would also not be governed by O. III, r. 1, as the presentation of a plaint is not required or authorized by law to be made or done by a party to such Court. Order IV, r. 1, which refers to presentation of a plaint, does not require the presentation to be made or done by a party. Order IV, r. 1, merely provides that every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf. Order IV, r. 1, does not specify by whom a plaint is to be presented. A plaint can, therefore, be presented by any person. It can perhaps even be sent by registered post, addressed to the Court or to the officer appointed by the Court to receive plaints, but this point need not be further considered as it does not arise in the present case.

12. The question is whether the provisions contained in O. VI relating to signing, verification and presentation of the plaint relate merely to procedure or whether a plaint which does not strictly comply with the requirements of O. VI would cease to be a valid plaint and would be a nullity because of such defects or irregularities. It is true that when a plaint is presented to the Court or to such officer as the Court appoints, it is open to the Court or to the officer to point out the defects or irregularities to the person presenting the suit and to require him to rectify the defects or irregularities. But can it be said that the defects or irregularities would make the presentation of the suit itself invalid although the plaint is admitted and particulars of the plaint are entered in a register of suits as provided by O. IV, r. 2? In this connection it is necessary to note that O. VII, r. 11, which refers to the rejection of a plaint, enumerates only four cases in which a plaint has to be rejected, but it does not enumerate any of the defects or irregularities referred to in O. VI, r. 14, O. VI, r. 15, or O. VI, r. 2. It is clear from the provisions contained in O. VI that these rules relate only to procedure, and the better view would be to regard them as mere matters of procedure and to hold that if a plaint is not properly signed or verified but is admitted and entered in the register of suits it does not cease to be a plaint and the suit cannot be said not to have been instituted merely because of the existence of some defects or irregularities in the matter of signing and verification of the plaint.

13. I shall next turn to the authority of decided cases. That defects in regard to signature on a plaint are technical irregularities relating to matters of procedure which can be cured at any time irrespective of the question of limitation was the view taken by a Division Bench of the Bombay High Court in Ganpati Nana v. Jivanabai . 1922 I.L.R 47 Bom. 227, S.C 24 Bom. L.R 1302. by a single Judge of the Bombay High Court in Bundi Portland Cement Co. Ltd. v. Abdul Hussein,2 and by another single Judge in Nanjibhai v. Popatlal.3 A contrary view that it cannot be said that a suit has been instituted if it did not comply with O. VI, r. 14, or O. VI, r. 15, Civil Procedure Code, was held by a single Judge in Prince Line Ltd. v. Trustees of Port Trust . 1949 51 Bom. L.R 1004., relying on the Division Bench judgment in Uttamram Vithaldas…(Original Plaintiff), Applicant; v. Thakordas Parshottamdas…(Original Defendant), Opponent. were held in Nanjibhai v. Popatlal to be obiter dicta as the question of limitation was not considered in that case. The real question decided by the High Court in Uttamram Vithaldas v. Thakordas Parshottamdas was whether or not the plaintiff should be allowed subsequently an opportunity to rectify defects in the matter of signature on the plaint. The High Court set aside the dismissal of a suit by the trial Court which had dismissed the suit on the ground that the plaint had not been properly signed. The High Court set aside the dismissal of the suit and allowed the plaintiff an opportunity to sign the plaint. Without deciding the question of limitation the High Court made some observations as to the date on which the suit must be deemed to have been instituted. As the question of limitation was not decided, it was not necessary to decide on what date the suit had been instituted.

14. The judgment of the Division Bench of the Bombay High Court in Ganpati Nana v. Jivanabai and the judgments of single Judges in Bundi Portland Cement Co. Ltd. v. Abdul Hussein, Ephrayim H. Ephrayim…Plaintiff; v. Turner Morrison & Co.…Defendants. . 1930 32 Bom. L.R 1178. and Nanjibhai v. Popatlal are in favour of the view that defects in regard to the signature, or verification or presentation of the plaint are mere irregularities of procedure. In Bundi Portland Cement Co. Ltd. v. Abdul Hussein it was held that the rule in O. XXIX, r. 1, Civil Procedure Code, regarding signature on the plaint is only a matter of procedure and that “if the signature on the plaint or the verification of the pleading is defective, the defect can be cured at any subsequent time.” It was also held that the provisions contained in O. XXIX, r. 1, Civil Procedure Code, are clearly permissive and not imperative. Order XXIX, r. 1 is merely a rule of procedure and does not exclude the operation of O. VI, r. 14 and r. 15. In Ganpati Nana v. Jivanabai, where a power-of-attorney was defective, it was held that the decree should not be disturbed in appeal in spite of the defect. If such defects go to the root of the plaint and vitiate the plaint, there could be no suit and no decree. As the High Court refused to disturb the decree in spite of defects in the plaint it impliedly held that defects in the plaint do not vitiate the plaint or the suit. Section 99 of the Civil Procedure Code was applied apparently on the view that there was merely a defect or irregularity in the proceedings in the suit after it had been properly instituted. That the signing and verification of pleadings is not a matter of substance but of procedure only, that notwithstanding irregularities in the plaint in regard to signing or verification of presentation, the plaint must be deemed to have been instituted on the date of its admission by the Court, and that such defects can be cured in appeal or even after the period of limitation was the view held in In the Matter of the Petition of Bisheshar Nath,7 Netram v. Bhagwan,8 Ali Muhammad Khan v. Ishaq All Khan,9 Shib Deo Misra v. Ram Prasad,10 Subbiah Pillai v. Sankarapandiam Pillai,11 Ramgopal Ghose v. Dhirendra Nath Sen,12 Sarju Prasad v. Badri Prasad . [1939] Nag. 515..

15. Referring to the observations of the Privy Council in Mohini Mohun Das v. Bungsi Buddan Saha Das . 1889 I.L.R 17 Cal. 580, P.C it was remarked in Nanjibhai v. Popatlal (at p. 632) that their Lordships of the Privy Council were of the opinion that the signing of the plaint was not essential part of it. In Basdeo v. John Smidt . 1899 I.L.R 22 All. 55. it was held that omission to sign a plaint in accordance with O. VI, r. 14, Civil Procedure Code, was a mere irregularity. The rule in O. VI, r. 14, regarding signature on a plaint is both desirable and salutary. The object of requiring signature on a plaint is to prevent fictitious suits. As observed in Great Australian Gold Mining Company v. Martin,16 which was overruled on another point in Fowler v. Barstow,17 “signature of counsel to the bill was to that extent a voucher that the case was not a mere fiction.” Signature on the plaint is also essential to fix the responsibility of the plaintiff and to afford guarantee of his good faith. Vide Basdeo v. John Smidt.

16. It is open to the Court or to the Officer of the Court authorized to receive plaints to refuse to admit a plaint if it is not properly signed or properly verified. It is also open to the Court at any subsequent stage, on its own initiative or upon objection being taken by the defendant, to require the plaintiff to sign and verify the plaint, and if the plaintiff refuses to do so, the Court can refuse to take any further steps. But that does not mean that if the Court requires the plaintiff to sign the plaint subsequently, the original plaint ceases to be a plaint. In Basdeo v. John Smidt it was held that the mere fact that the plaint is not signed by the plaintiff or by a person duly authorized by him will not make the plaint void and that a plaint does not cease to be a plaint if it is unsigned or if the signature is defective. A similar view was taken in Netram v. Bhagwan, In the Matter of the Petition of Bisheshar Nath, Ali Muhammad Khan v. Ishaq Ali Khan, Ramgopal Ghose v. Dhirendra Nath Sen, Govindoss v. Muthiah Chetty,18 Shib Deo Misra v. Ram Prasad, Rajit Ram v. Katesar Nath . 1896 I.L.R 18 All. 396. and Educational Book Depot v. Rabindra Nath Tagore.20 The last three cases are cases of irregularity in regard to verification of the plaint. See also Qanajat Husain v. Sajidunnisa Bibi,21 a case where a person holding a power-of-attorney signed and verified the plaint not in his own name but in the name of the plaintiff. That the defects in regard to signature on the plaint can be cured subsequently and even in appeal was the view taken in Subbiah Pillai v. Sankarapandiam Pillai. In the Matter of the Petition of Bisheshar Nath and Netram v. Bhagwan. In Subbiah Pillai v. Sankarapandiam Pillai plaintiff had not signed the plaint. It was held that the omission could be cured and should be corrected in the interests of justice, that the omission to sign or verify a plaint is not such a defect as would affect the merits of a case or the jurisdiction of the Court, that if the defect is not discovered until the case comes up for hearing before the appellate Court, the appellate Court may order an amendment to be made in that Court and that the appellate Court ought not to dismiss the suit or interfere with the decree of the lower Court merely because the plaint had not been signed. Reliance was placed on the Privy Council decision in Mohini Mohun Das v. Bungsi Buddan Saha Das and on Basdeo v. John Smidt. The suit must be deemed to have been duly instituted in spite of defects in regard to the signature or verification or presentation of the plaint. Ali Muhammad Khan v. Ishaq Ali Khan, Shib Deo Misra v. Ram Prasad, and Ramgopal Ghose v. Dhirendra Nath Sen.

17. Their Lordships of the Privy Council observed in Mohini Mohun Das v. Bungsi Buddan Saha Das, that there was no rule that a person named as co-plaintiff in the plaint was not to be treated as a plaintiff unless he signed and verified the plaint. O. VI, r. 14, which requires that every plaint should be signed by the plaintiff and his pleader, if any, has, in view of the Privy Council decision to be interpreted so as to mean that a plaint should be signed by at least one plaintiff. See also Bibi Asghari v. Md. Kasim . [1951] A.I.R Patna 323. and Ali Muhammad Khan v. Ishaq Ali Khan.

18. The plaint in the instant case is signed by plaintiff No. 2. The signature of plaintiff No. 2 on the plaint is, therefore, sufficient. Plaintiff No. 2 also admittedly happens to be the Managing Director of plaintiff No. 1 company. The Managing Director of the company admittedly has authority to file suits on behalf of the company.

19. In this view of the matter it is not necessary to decide the question whether Ghushey was authorized by proper power-of-attorney to sign the plaint on behalf of the company (plaintiff No. 1). Under O. VI, r. 14, Civil Procedure Code, in certain circumstances a person duly authorized by the plaintiff can sign the plaint. Under O. XXIX, r. 1, in the case of Corporations the plaint can be signed by the Secretary or Director or other principal officer of the Corporation. In Calico Printers' Association, Ltd. v. Karim & Bros. . 1930 I.L.R 55 Bom. 151, S.C 32 Bom L.R 1305. after considering the Privy Council decision in Delhi and London Bank v. Oldham . 1893 L.R 20 I.A 139. it was held that either O. XXIX, r. 1, or O. VI, r. 14, can be applied to companies. See also Bundi Portland Cement Co., Ltd. v. Abdul Hussein. In the case of companies the plaint can be signed by either a Secretary or a Director or other principal officer under O. XXIX, r. 1, Civil Procedure Code, or any person duly authorized by the company under O. VI, r. 14. The words “duly authorized” in O. VI, r. 14, need not be restricted to mean authorized by proper written authority or by power-of-attorney. There is authority for this view in Bengal Jute Mills v. Jewraj Heeralal,25 Subbiah Pillai v. Sankarapandiam Pillai, Sarju Prasad v. Badri Prasad and Netram v. Bhagwan. In these cases it was held that a plaintiff can orally authorize another person to sign a plaint for him. The Managing Director of the plaintiff company in the instant case, who has authority to file suits on behalf of the company (vide Article 156 of the company's articles of association), can orally authorize another person to sign the plaint for him on behalf of the company. Plaintiff No. 2, who is the Managing Director of the company (plaintiff No. 1) has in his deposition deposed that Ghushey signed the plaint under his instructions. The evidence of Ghushey is to the same effect.

20. In the matter of signature on the plaint, as already observed, O. III, r. 1, and O. III, r. 2, have no application, because signature on the plaint is not an act in or to a Court. It is, therefore, not necessary to decide whether the power-of-attorney dated May 1, 1946, in favour of Ghushey was a valid one, whether it ceased to be operative after the A.I.R Limited became a public limited company in 1948, and whether the power-of-attorney dated April 13, 1951, in favour of Ghushey was invalid as it did not bear the seal of the company. In order to decide whether a person is duly authorized by the plaintiff to sign a plaint for him under O. VI, r. 14, one has ordinarily to consider the provisions of the Civil Procedure Code alone and the general law. But in the case of a plaintiff who happens to be a company, the company cannot orally authorize another person. A company can act only under its articles of association. If a power-of-attorney is to be executed for a company, it must satisfy the requirements of its articles of association. Article 153(19) of the Articles of Association of plaintiff No. 1 in the instant case requires that a power-of-attorney must be under the seal of the company. In the instant case it is conceded by the learned counsel for the appellant that there is no evidence on record to show that either the power-of-attorney dated May 1, 1946, or the power-of-attorney dated April 13, 1951, bore the seal of the company. There was, therefore, no proper power-of-attorney on behalf of the company in favour of Ghushey. However, as already observed, it is not necessary that there should be a written authorization or a written power-of-attorney. The Managing Director of the company has under Articles 153(16) and 156 of the Articles of Association full powers of general management of the business of the Company and he has also all the powers and authority vested in the Board of Directors except those specified in Article 157. The Managing Director of the company can, therefore, orally authorize any person to act for him. As already observed, it is the evidence of both plaintiff No. 2 and of Ghushey that plaintiff No. 2 as Managing Director of the company (plaintiff No. 1) had orally authorized Ghushey to sign the plaint.

21. As regards the contention that when a private limited company is converted into a public limited company, the power-of-attorney executed by the former would not be valid after the conversion of the company into a public limited company, this question need not be decided because both the power-of-attorney of 1946 and 1951 do not bear the seal of the company. However, there is no doubt that when under s. 154 of the Indian Companies Act, 1913, a private limited company is converted into a public limited, company the company's identity is not changed, but only its nature. A private limited company can be converted into a public limited company by merely changing two or three articles of its articles of association, the original articles of association continuing to be operative. A company can alter some of its Articles of Association. Such an alteration does not affect the identity of the company.

22. As regards signature on the plaint, authorization by plaintiff No. 2 as Managing Director of plaintiff No. 1 company is quite sufficient, and it is the evidence of both plaintiff No. 2 and Ghushey that the former had authorized the latter to sign the plaint. Moreover, as already observed, this is a case of plaint with two plaintiffs, and admittedly, one of the plaintiffs, plaintiff No. 2, has signed the plaint.

23. As regards presentation of the plaint, the trial Court held that the plaint had not been properly presented as it was presented by Mr. Shidhaye, advocate, under a Vakalatnama which bore the signature of plaintiff No. 2 and the signature of Ghushey who described himself as agent of plaintiff No. 1 and who held a power-of-attorney from A.I.R Limited as it was before its conversion into a public limited company. I have already expressed the view that there is nothing in O. IV, r. 1, as to who should present a plaint in the Court. There is authority in support of this view in Ali Muhammad Khan v. Ishaq Ali Khan, a Full Bench decision, where it is observed that there is no rule which in express terms requires that the plaintiff should file the plaint personally, nor was there any rule which expressly said that it should be filed by a person holding a power-of-attorney on behalf of the plaintiff or otherwise duly authorized by the plaintiff. It was also observed that it is doubtful whether O. III, r. 1, Civil Procedure Code, would apply to such a case. In Qanayat Husain v. Sajidunnisa Bibi it was held that presentation of a plaint by a person having no power-of-attorney is a mere irregularity. A plaint need not be presented by the plaintiff personally or by a person duly authorised by him. In the case of a suit where there are two or more plaintiffs, presentation of the plaint by one of the plaintiffs, or, as in the instant case, by the pleader of one of the plaintiffs, would undoubtedly be a proper presentation.

24. As regards the verification of the plaint, in the instant case it was verified by Ghushey as agent of the A.I.R Limited (plaintiff No. 1). It was not verified by plaintiff No. 2. Order VI, r. 15, of the Civil Procedure Code requires that the plaint should be verified by the plaintiff or one of the plaintiffs or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. Order VI, r. 15, does not refer to persons authorized by the plaintiff or any of the plaintiffs. If the plaint is not verified by a plaintiff or by any one of the plaintiffs, it can be verified only by a person proved to the satisfaction of the Court to be acquainted with the facts of the case. It is true that there are several authorities in favour of the view that omission to verify a pleading is a mere irregularity and that a pleading which is not verified as required by O. VI, r. 15, may be verified at any later stage of the suit, even after the expiry of the period of limitation. See Ephrayim v. Turner Morrison and Co., Shib Deo Misra v. Ram Prasad, Ali Muhammad Khan v. Ishaq Ali Khan, Calico Printers' Association, Ltd. v. Karim & Bros., Ramgopal Ghose v. Dhirendra Nath Sen and Educational Book Depot v. Rabindra Nath Tagore.

25. In the instant case the objection raised by the defendant to the plaint merely related to the validity of the power-of-attorney in favour of Ghushey and consequent irregularities in regard to the signing and verification of the plaint. The objection that the plaint was not verified by a person acquainted with the facts of the case has not been urged by the learned counsel for the defendant-respondent before us. But this point was considered by the lower Court which held that it cannot be said that on February 18, 1949, the date of presentation of the plaint, Ghushey was acquainted with the facts of the case. The lower Court, therefore, held that the verification was not proper. But in the next paragraph of the judgment (para. 37) the lower Court took the view that it was only on April 24, 1951, that the plaint was properly signed and verified by Ghushey under a power-of-attorney from plaintiff No. 1, as it came to be after the conversion of the company into a Public Limited Company. But, as already observed, in order to comply with the rules regarding verification contained in O. VI, r. 15, it is not sufficient that the plaint is verified by someone authorized by the plaintiff. It must be verified by the plaintiff, or one of the plaintiffs, or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. See also Bengal Jute Mills v. Jewraj Heeralal. Ghushey verified the plaint on February 18, 1949, and also on April 24, 1951. In his deposition on August 8, 1953, he swore that he had no personal knowledge about the facts stated in the plaint or the nature of the dispute between the parties. The plaint is, therefore, not verified by any of the plaintiffs or by a person acquainted with the facts of the case. I would like to impress upon Courts receiving pleadings and officers authorized to receive pleadings the necessity and importance of seeing that the requirements of O. VI, rr. 14 and 15 and of O. VII, r. 1, are properly complied with. The defect or the absence of a proper verification of the plaint is, however, one of procedure and is a mere irregularity. The defendant did not object to it. In Rajit Ram v. Katesar Nath, a case decided by three Judges, it was held that on a mere question of defect of verification it is not necessary for an appellate Court to pay any attention or take any steps to rectify a defect in the verification of a plaint.

26. If defects in regard to the signature, verification or presentation of the plaint are cured on a day subsequent to the date of filing the suit, the date of institution of the plaint is not changed to the subsequent date. Nanjibhai v. Popatlal; Ramgopal Ghose v. Dhirendra Nath Sen; Ali Muhammad Khan v. Ishaq Ali Khan and Shib Deo Misra v. Ram Prasad. When a plaint is re-signed or re-verified, it may or may not amount to an amendment of the plaint. In Shib Deo Misra v. Ram Prasad it was held that such a re-verification or re-signing would not amount to an amendment of the plaint. Even when a plaint is amended, the amendment relates back to the date of the suit except in some cases, e.g where the amendment adds new parties or properties. See Nanjibhai v. Popatlal, Rohini Kumar v. Niaz Mahammad,26 Nallakumara v. Pappayi Ammal,27 Weldon v. Neal,28 and Janardan Kishore Lal v. Shib Pershad Ram . 1915 I.L.R 43 Cal. 95..

27. Holding that it was only on April 24, 1951, that the plaint was properly signed and verified, the trial Court held that the date of the filing of the suit must be taken to be April 24, 1951. As already pointed out, the general consensus of authority of the Bombay High Court and other High Courts is in favour of the view that defects and irregularities in the matter of signing, verifying or presenting plaints are mere irregularities of procedure which do not make the suit ineffective, inoperative, or void. The existence of such defects does not mean that the suit had not been filed. Even when the plaint is amended after it is properly instituted, the amendment relates back to the date of the original plaint unless the amendment adds new parties or new properties. That is why leave to amend a plaint has ordinarily to be refused, except in very exceptional cases, if the effect of the proposed amendment is to take away from the defendant the legal right which accrued to him by lapse of time. See Charan Das v. Amir Khan.30 If the amendment is allowed, it relates back to the date of the original plaint. It is not a case of the amendment taking effect from the date of amendment and of condoning the bar of limitation. If the amendment of the plaint is allowed, the question of limitation cannot be reserved. It is not a case of allowing the amendment of the plaint and reserving the question whether or not to condone the delay and the bar of limitation. If the Court feels that the bar of limitation should not be avoided, it must refuse the amendment of the plaint. After allowing the amendment the Court cannot say that the amendment takes effect from the date of the amendment. Similarly, when a defective plaint is rectified and re-signed and re-verified on a subsequent date, the re-signing or the re-verification of the plaint relates back to the original date. See Bundi Portland Cement Co., Ltd. v. Abdul Hussein, Ramgopal Ghose v. Dhirendra Nath Sen, Shib Deo Misra v. Ram Prasad, and in the Matter of the Petition of Bisheshar Nath.

28. Even in The Prince Line, Ltd. v. The Trustees of the Port of Bombay it was held that if a plaint is not properly signed or verified or presented the Court has always got the discretion to allow the plaintiff to remedy the defect at a later stage even though the period of limitation may have already expired and the defendant has vested in him by that time a right to plead the bar of limitation, and that if that discretion is exercised by the Court, the curing of the defect or the amendment of the plaint would be effective as from the date of the institution of the suit itself, and it would not be open to the defendant to plead the bar of limitation.

29. The date of institution of the suit or the date from which an amendment takes effect does not depend on the discretion of the Court. Of course, the Court has a discretion to allow or not to allow an amendment of the pleadings or the re-signing or re-verification of the plaint. Once the discretion is exercised, the amendment of the plaint or the fresh signature or verification of the plaint relates back to the original date of the suit. In other words, the original date of institution of the suit is not affected by the amendments of the plaint or the fresh signature or verification of the plaint. It is also open to a Court to say that it provisionally allows an amendment of the plaint and that the question whether or not to allow the amendment of the plaint or its re-signing or re-verification would be finally decided later. In such a case it is only the final order of the Court that has to be considered and not the provisional order. But once the amendment of the plaint is allowed, the question of limitation cannot be reserved.

30. In the instant case, the plaint is signed by one of the plaintiffs, which is quite sufficient in view of the decision of their Lordships of the Privy Council in Mohini Mohun Das v. Bungsi Buddan Saha Das. In regard to presentation of the plaint, as already observed, the plaint need not be presented by plaintiff or any person authorized by him.

31. Presentation of the plaint by the pleader of one of the plaintiffs is quite proper. As regards verification of the plaint, unfortunately, even today the plaint is not properly verified by one of the plaintiffs or by any person acquainted with the facts of the case. But this however is a matter of mere irregularity in regard to procedure and does not make the suit filed on February 18, 1949, defective. The lower Court was, therefore, wrong in holding that the suit must be deemed to have been instituted only on April 24, 1951, and that it was, therefore, barred by limitation. I, therefore, agree with my learned Brother's view that the suit is within time notwithstanding the irregularities in the plaint.