CS(OS) 2348/2014 Page 1 of 17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 2348/2014
Reserved on: 14.07.2015 Date of decision: 24.08.2015
IN THE MATTER OF:
ALKA KASANA ..... Plaintiff Through: Mr. Sudhir Naagar, Advocate with Mr. Arun Singh, Advocate
versus
INDIAN INSTITUTE OF TECHNOLOGY ..... Defendant Through: Mr. Arjun Mitra, Advocate
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J.
I.A. 22875/2014 (by the defendant u/O VII R 11 CPC)
1. The present application has been filed by the defendant/IIT Delhi under Order VII Rule 11 CPC praying inter alia that the suit be rejected on the ground that the same is barred by limitation.
2. The plaintiff, who was admitted in the defendant/Institute in the year 2010, as a student of M.Tech. (Laboratory Science Course), has instituted the present suit against the defendant/IIT, claiming damages of `50 lacs alongwith interest on account of 100% loss of
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vision with sustained chemical burn injuries suffered by her during the practicals held in the chemistry laboratory and attributed to the defendant on account of their alleged negligence when an explosion had taken place in the Institute's premises on 27.06.2011.
3. The only plea raised by the learned counsel for the defendant for seeking rejection of the plaint under Order VII Rule 11 CPC is that the suit is barred by limitation for the reason that the plaintiff is asking for compensation in respect of an accident that had occurred on 27.06.2011 and the period of limitation for instituting a suit as prescribed under the Limitation Act, 1963 is three years from the date of the occurrence of the accident, which would have expired on 26.06.2014, whereas the plaintiff had instituted the present suit on 30.05.2014, and on the said date, the plaint was not supported by an affidavit duly verified by the plaintiff, as prescribed under Order VI Rule 15(4) of the CPC and any re-filing of the plaint after 26.06.2014, would make the suit barred by limitation.
4. Per contra, learned counsel for the non-applicant/plaintiff had contended that the plaintiff had suffered serious eye injuries that had resulted in 100% loss of vision and the said incident had occurred on 27.06.2011, and the present suit was filed on 30.05.2014, i.e., well
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within the period of limitation of three years. He submitted that the plaint when filed on 30.05.2014, was duly signed and verified by the plaintiff and it was accompanied by her affidavit. However, the affidavit could not be got attested from the Oath Commissioner since 30.05.2014 was the last working day before the High Court was to close for the summer vacations that were to commence on 01.06.2014 and it so happened that on the said date, the Oath Commissioners had left the court premises by 3 PM. As there was no time left for approaching a nearby Oath Commissioner for getting the affidavit attested at the time of filing the suit, the same had to be filed without attestation particularly since the period of limitation was to expire during the summer vacations. On the Court reopening after the summer vacations on 01.07.2014, the objections raised by the Registry were cured and the affidavit filed in support of the plaint was got attested by the Oath Commissioner on 28.07.2014, when the plaintiff, who has lost her vision completely and is presently residing with her husband at Meerut, UP, had visited Delhi and affixed her thumb impression at the required places.
5. Counsel for the plaintiff submitted that given the aforesaid facts, it cannot be argued that the suit was filed beyond the period of
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limitation because substantial compliance of the provisions of the CPC and the Delhi High Court Rules governing filing of civil suits on the original side were made. He concluded by stating that the provisions of Order VI Rule 15(4) of the CPC that require the person verifying the pleadings to furnish an affidavit in support of the said pleadings, are not mandatory in nature but only directory and such a defect being a curable one, once the same is cured, it relates back to the date of presentation of the plaint.
6. Before dealing with the arguments advanced by learned counsels for the applicant/defendant and the plaintiff, a brief reference to some relevant dates is considered necessary for a proper understanding of the relevant provisions of the Code of Civil Procedure.
7. The unfortunate accident involving the plaintiff had taken place on 27.06.2011. The plaintiff had instituted the suit for damages against the defendant on 30.05.2014, i.e., on the eve of the High Court closing down for the summer vacations on 01.06.2014. The Court had reopened on 01.07.2014, whereafter the Registry had scrutinized the paper book and it was returned to the filing counter on 31.07.2014, with some objections relating to improper pagination and for the counsel to affix his signatures against some corrections made
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in the plaint. The said objections were removed by the counsel for the plaintiff on the same date and the plaint was re-filed on 31.07.2014. As all the objections were not removed, the Registry had once again returned the paper book to the filing counter on 31.07.2014 itself, for curing the said objections. Counsel for the plaintiff took back the paper book on 05.08.2014 and after removing the remaining objections, the suit was re-filed on the same day.
8. Coming to the plea of limitation raised by the counsel for the defendant/IIT, Delhi, it is not too often that the provision of Order VI Rule 15 CPC is invoked to non-suit a plaintiff. As the fulcrum of the arguments advanced on behalf of the defendant lies in the interpretation of provisions of Order VI Rule 15 CPC, it is considered expedient to set out the same hereinbelow:-
"15. Verification of pleadings.- (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.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
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(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.
(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings."
9. Order VI Rule 15 of the CPC provides for verification of pleadings. Pleadings have been described as plaint or written statement under Order VI Rule 1 CPC. Sub rule (4) of the aforesaid provision came to be inserted by the Amendment Act 46 of 1999 w.e.f. 01.07.2002. Prior to the amendment to Rule 15 CPC, there was no provision regarding verification of the pleadings in a plaint by way of an affidavit.
10. Pertinently, Section 26 of the CPC that deals with institution of suits prescribes as below:-
"26. Institution of suits - (1) Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.
(2) In every plaint, facts shall be proved by affidavit."
It may be noted that sub rule (2) of Section 26 was also inserted by way of the amendments that were given effect from 01.07.2002.
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11. Order IV of the Code deals with institution of suits and Rule 1 thereunder provides for the commencement of the suit as below:-
"1. Suit to be commenced by plaint.- (1) Every suit shall be instituted by presenting a plaint in duplicate to the court or such officer as it appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.
(3) The plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rules (1) and (2)"
Once again, Rule 1 of Order IV was also introduced by the Amendment Act, 1999 w.e.f. 01.07.2002.
12. When the aforesaid provisions are read conjointly, what clearly emerges is that a suit is instituted upon presentation of the plaint or in such a manner as maybe prescribed in the CPC and the facts stated in the plaint are to be proved by affidavit. On presentation, the plaint is expected to comply with the requirements that are specified in sub- rules (1) and (2) of Order IV Rule 1 CPC, i.e., a suit shall be instituted by presenting a plaint in duplicate to the Court and every plaint shall comply with the rules contained in Order VI and Order VII insofar as they are applicable. Order VI deals with pleadings generally, which
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includes the plaint and the written statement and Rule 15 contemplates that every pleading has to be verified at the foot by the party pleading or by a person, who is acquainted with the facts of the case and not only shall such a person, who verifies the pleading, specify by referring to the numbered paragraphs of the pleading as to what information is within his knowledge, what information has been verified upon information being received and heard to be true, the said verification is required to be signed by the person making it, indicating inter alia the date and place on which it was signed. The last requirement under Rule 15 of Order VI that was introduced by virtue of the Amendment Act, 1999 is that the person verifying the pleading is also required to furnish an affidavit in support of the said pleading.
13. A glance at the aforesaid provisions would clearly demonstrate that sub-rule (4) of Rule 15 of Order VI relied upon by the counsel for the defendant does not empower the Court to reject a plaint on the ground that the same is not supported by an affidavit duly attested by the Oath Commissioner on the date when it was presented in the Registry.
14. Courts have repeatedly held in a string of decisions that if there is any defect in the institution of a suit, the plaintiff must be afforded an opportunity to cure such a defect and only in circumstances, where
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inspite of granting opportunities, the plaintiff fails to cure the same, would the Court proceed to reject the plaint. In the case of Rajeshwarha vs. Sushma Govil reported as AIR 1989 Delhi 144, the High Court had gone to the extent of holding that even when a plaint has been signed and verified by a person, who is not duly authorized by the plaintiff, the plaintiff is still entitled to rectify the said action subsequent to the institution of the suit. It may be emphasized that wherever there is a provision made in the Code of Civil Procedure for dismissing a suit/rejecting a plaint or for withdrawal of a suit, a resultant/consequential provision exists to clarify as to whether the plaintiff is entitled to sue or be non-suited on the very same cause of action.
15. There are several decisions on the aspect of delay in re-filing of the suit not being governed by the provisions of the Limitation Act. It was held in the case of Indian Statistical Institute vs. Associate Builders reported as AIR 1971 SC 335, that the power of the Court to condone the delay in re-filing of a plaint is of a much wider amplitude and far more liberal than the powers that are vested in it under Section 5 or any other provisions of the Limitation Act, to condone such a delay.
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16. In the aforesaid context, it is considered relevant to refer to a decision cited by learned counsel for the plaintiff in the case of Vidyawati Gupta and Ors. Vs. Bhakti Hari Nayak and Ors. reported as
(2006) 2 SCC 777, wherein the Supreme Court was examining a decision of the Division Bench of Calcutta High Court that had relied on the interpretation of the expression "duly" used in Order IV Rule 1 (3) CPC, as given in an earlier decision of the Supreme Court in the case of LIC of India vs. D.J. Bahadur reported as (1981) 1 SCC 315 and had opined that unless the plaint complies with the requirements of the amended provisions, there would be no due institution of the plaint and in the absence of such compliances as required under the amended provision, no plaint can be said to have been filed in the eyes of law. However, after taking note of the much celebrated decision of the Supreme Court in the case of Salem Advocate Bar Association vs. Union of India reported as (2003) 1 SCC 49, wherein the effect of the amendments introduced in the Code by the amending Act 46 of 1999 and 22 of 2002 were considered, the Division Bench had held that a plaint will be deemed to have been properly instituted from the moment the error is rectified, but the said rectification could not relate back to a period when in view of the deeming clause, there was no due institution of the plaint.
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17. In the appeal preferred against the said decision of the Calcutta High Court, the Supreme Court had observed that the requirements of Order VI and Order VII of the CPC are procedural in nature and any omission in respect thereof, shall not render the plaint invalid and that such defects or omissions will not only be curable, but will also relate back to the date of the presentation of the plaint. It was clarified that the expression "duly" used in Order IV Rule 1 CPC implies that the plaint must be filed in accordance with law. Reiterating the principle that rules of procedure are made to further the cause of justice and not to obstruct the same, the Supreme Court held that the procedural enactment ought not to be considered in such a manner that it would prevent the Court from meeting the ends of justice in different situations. The observations made by the Supreme Court in respect of the amendments made in the CPC in the Amendment Act 46 of 1999 are apposite and reproduced below:-
"50. The intention of the legislature in bringing about the various amendments in the Code with effect from 1-7-2002 were aimed at eliminating the procedural delays in the disposal of civil matters. The amendments effected to Section 26, Order 4 and Order 6 Rule 15, are also geared to achieve such object, but being procedural in nature, they are directory in nature and non-compliance thereof would not automatically render the plaint non-est, as has been held by the Division Bench of the Calcutta High Court.
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51. In our view, such a stand would be too pedantic and would be contrary to the accepted principles involving interpretation of statutes. Except for the objection taken that the plaint had not been accompanied by an affidavit in support of the pleadings, it is nobody's case that the plaint had not been otherwise verified in keeping with the unamended provisions of the Code and Rule 1 of Chapter 7 of the Original Side Rules. In fact, as has been submitted at the Bar, the plaint was accepted, after due scrutiny and duly registered and only during the hearing of the appeal was such an objection raised.
52. Considering the aforesaid contention, even though the amended provisions of Order 6 are attracted in the matter of filing of plaints in the Original Side of the Calcutta High Court on account of the reference made to Order 6 and Rule 1 of Chapter 7 of the Original Side Rules, non-compliance thereof at the initial stage did not render the suit non-est. On account of such finding of the Division Bench of the Calcutta High Court, not only have the proceedings before the learned Single Judge been wiped out, but such a decision has the effect of rendering the proceedings taken in the appeal also non-est." (emphasis added)
18. The view expressed by the Supreme Court as above was reinforced with reference to its earlier decisions in the case of Kailash vs. Nankhu & Ors. reported as (2005) 4 SCC 480 and Sk. Salim Haji Abdul Khayumsab vs. Kumar reported as (2006) 1 SCC 46. In the case of Salim Haji Abdul (supra), the provisions of Order VIII Rule 1, post amendment were held to be directory in nature by applying the oft quoted maxim that rules of procedure are handmaids of justice and while the language employed by the draftsman of the processual law may be liberal or stringent, the object of the prescribing procedure is
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to advance the cause of justice.
19. Similarly, in the case of Kailash (supra), upon examining the provisions of Order VIII Rule 1 CPC, the Supreme Court had held that unless compelled by expression and specific language of the statute, the provisions of the CPC or any other procedural enactment ought not to be construed in such a manner that would leave the Court helpless to meet the extraordinary situations in the ends of justice. The Court had observed that merely because the provision of law is couched in a negative language thereby giving it a mandatory character, the same would not become mandatory and that directions contained regarding the period of filing the written statement under Order VIII Rule 1 CPC were only directory in nature and not mandatory, being procedural law.
20. Again, in the case of Salem Advocate Bar Association (supra), on considering the effect of the amendments introduced in the Code by the Amending Act 46 of 1992 and 22 of 2002, the Supreme Court had examined the provisions of Order VII Rule 11 CPC, where clauses (e) and (f) were added to enable the Court to reject a plaint when it was not filed in duplicate or where the plaintiff had failed to comply with the provisions of Order VII Rule 9 CPC and it had expressed a view
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that such clauses are procedural in nature and would not result in automatic rejection of the plaint in the first instance. It was also clarified that if there was any defect as contemplated by Rule 11(e) or in the compliance referred to in Rule 11(f), the Court should ordinarily give an opportunity to rectify the said defect and only if the same was not done, would the Court have the liberty to reject the plaint.
21. As it stands, Order VI does not provide for or envisage any consequences for non-compliance of the provisions contained therein. Given the said position, the inevitable inference is that Order IV is a provision that signifies the date on which a suit is deemed to have been instituted for purposes of limitation. Merely because Rule 1 of Order IV prescribes that every plaint shall comply with the rules contained in Order VI and Order VII and a plaint shall not be deemed to be duly instituted unless it complies with the said provision, would not translate into outright rejection of the plaint for non-compliance of the procedural formalities prescribed in Order VI Rule 15 CPC. It is also relevant to note that the Original Side Rules of the High Court of Delhi specify the manner in which the plaint is required to be scrutinized and stipulates the timeline granted to the plaintiff to cure the defects/objections, if any, raised by the Registry at the time of
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scrutiny.
22. The obvious and only conclusion is that the court is not empowered to dismiss a suit or reject a plaint for non-compliance of the provisions of Order VI Rule 15(4) of the Code. If such an abstruse approach is adopted by the Court, then it would lead to travesty of justice, where based on the peripherals of irregularities in a plaint that may surface at the time of its scrutiny by the Registry, the suit itself would be rejected without looking at the merits of the case. That could never have been the intention of the legislature, as it would devitalize substantial justice.
23. A glance at the statement of objects and reasons for the amendments made to the Code by the Act 46 of 1999, would clearly bring out that the decision to introduce the provision of filing an affidavit in support of the pleading and plaint was taken to hasten the process of disposal of a suit by fixing the responsibility on a party, who initiates the suit. However, the said objects and reason behind the amendments to the Code cannot be interpreted in such a fashion that a plaint itself can be rejected mechanically without examining the merits of the case.
24. Given the aforesaid legal position, the contention of the learned counsel for the defendant that because the plaint was not
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accompanied by an affidavit furnished by the plaintiff in support of her pleading at the time of institution of the suit, should be considered sufficient ground for this court to hold that the suit has not been duly instituted as contemplated under Order IV Rule 1(3) CPC, and liable to be rejected, is found to be patently erroneous. The second submission made by learned counsel that by the time the plaintiff had re-filed the plaint after curing the defects pointed out by the Registry, the period of three years reckoned from 27.06.2011, as prescribed under the Limitation Act had expired on 26.06.2014 and resultantly, on the date of re-filing, the suit was barred by limitation, is also fallacious and stands rejected. Such an argument based on sheer procedural defects, including failure on the part of the plaintiff to file a duly attested affidavit in support of the plaint, cannot invalidate the suit.
25. In the instant case, the defects pointed out by the Registry while returning the plaint under objections, were mere irregularities that were capable of being cured and cannot be treated as fatal to the institution of the suit. In any event, the said irregularities were cured by the plaintiff and her duly attested affidavit was furnished at the time of re-filing the suit on 05.08.2014. In these circumstances, it has to be held that the original defects stood cured and resultantly, the
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plaint must be taken to have been presented, not on the date of its re-filing, as urged by learned counsel for the defendant, but on the date when it was first presented.
26. In view of the aforesaid discussion, the present application is dismissed being devoid of merits, with costs quantified as `10,000/-.
(HIMA KOHLI)
AUGUST 24 , 2015 JUDGE
rkb/mk
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