N.K. Verma vs Batliboi And Co. Ltd.
1997 Latest Caselaw 441 Del

JUDGMENT

Manmohan Sarin, J.

(1) The petitioner has preferred this revision petition against an order passed by the Civil Judge dated 30-5-1996, allowing the respondent's application under Order Xiii Rule 2 read with Section 151 Civil Procedure Code and the application under Order Xvi Rule 1 read with Section 151 CPC.

(2) By the impugned order, respondent was permitted to place on record the minutes of meeting dated 24-1-1996 and ro solution of the same date. The order further permitted the additional list of witnesses to be taken on record for the purpose of proving the aforesaid documents. The main submission of the petitioner is that in the absence of a plea in the plaint about the resolution passed in the meeting of 24-1-1996, the plaintiff could not have been permitted to lead evidence in respect thereof. It is further contended that the respondent had fabricated the resolution with a view to save the suit and fill in the lacunae, when practically the entire evidence was over.

(3) For a proper appreciation of the mailer in controversy, it would be necessary to recapitulate the facts: (I)The respondent/plaintiff on 20-7-1992, had filed a suit under Section 6 of the Specific Relief Act for restoration of the possession of the premises namely 142, Golf Links, New Delhi, from which it claims to have been wrongfully dispossessed by the petitioner. The petitioner in the written statement filed on 14-9-1992, had initially admitted the factum of Sh. B.M.Lal, signatory of the plaint, being the constituted attorney of the respondent. However, it subsequently sought an amendment of the written statement, which was allowed by this Court in revision. The petitioner thereupon, amended the written statement, wherein it admitted the respondent being a limited company but denied Sh. B.M. Lal as being the Director and constituted attorney of the respondent company authorised to institute the suit. The execution of power of attorney in favour of Sh. B.M. lal was also denied. (ii) The respondent had filed its replication dated 27-8-1995, wherein it was reiterated that the suit had been instituted and plaint had been signed and verified by Sh. B.M. Lal, who had been duly authorized vide power of attorney dated 14-9-1994, executed in his favour on behalf of the respondent pursuant to the resolution dated 12-9- 1994, passed by the respondent company. An additional issue had also been framed regarding the plaint having been signed and verified and instituted by a duly authorized person. The respondent examined six witnesses and only two more witnesses remained to be examined. It is at this stage that the respondent filed the application under Order Xiii Rule 2 read with Section 151 Civil Procedure Code and under Order Xvi Rule I Civil Procedure Code, for placing on record the resolution dated 24-1-1996 and the minutes of the meeting of the said date.

(4) The respondent's case is that in terms of resolution dated 12-9-1994, which had been duly proved, authorized Sh. Nirmal Bhogilal, to grant a fresh power of attorney to senior Directors, General Managers, Director (Northern Region) and other Corporate Directors. Sh. B.M. Lal was slated to be a non-board Director at the time of execution of the power of attorney on 14-9-1984. However, later on in 1992, he was redesignated as the Vice-President, Northern Region. In order to avoid any technical objection being raised questioning the authority of Sh. Nirmal Bhogilal under the power of attorney to authorize Sh. B.M. lal, who had been redesignated as the Vice- President, Northern Region, the board of directors of the respondent company, held a meeting on 24-1-1996 and passed a resolution, confirming and ratifying the grant of power of attorney by the respondent company through the Managing Director, Sh. Nirmal Bhogilal in favour of Sh. B.M. Lal. The action taken by Sh. B.M. Lal in pursuance to the Power of Attorney were also ralified.

(5) It is the copy of this resolution dated 24-1-199u and the minutes of the meeting which the respondent is seeking to produce on record and prove in order to remove all objections and doubts with regard to the proper and valid institution of the suit.

(6) With this background, let us examine the rival contentions. Mr. Lonial,on be-half of the petitioner, submitted that reference and reliance in the impugned order, to the alleged admissions in (he earlier written statement was of no consequence as amendment had been permitted. In the amended written statement, the appointment of Sh. B.M. Lal as the constituted attorney was specifically denied, so also his authority to sign and verify the plaint. It was specifically pleaded that there was no resolution of Board of Directors to this effect. The respondent in the replication had failed to refute the allegation of there being no resolution. Mr. Lonial submitted that there is no plea in the plaint with regard to any resolution of the Board of Directors, to enable execution of a power of attorney in favour of Sh. B.M. Lal. It was not permissible for the respondent to lead evidence by filing the resolution and the minutes of meeting dated 24.1.1996 in support of a non-existent pica. He has also criticized the impugned order as taking note of a subsequent event namely the alleged meeting of 24-1-1996 and resolution passed therein, the factum of which was strongly disputed by the petitioner. He argued that it is only when a subsequent event is not disputed by the opposite party that the Court may take judicial notice of the same. He submitted that the suit had been instituted without any authority and, therefore, was liable to fail. The petitioner could not be permitted to fill up the lacunae. Mr. Lonial in support of his contention that no evidence could be in the absence of plea relied on Siddik Mahomed Shah Vs. Mt. Saran and others (1930 Privy Council 57), wherein the court affirmed Air 1925 Sind 2 to the effect that "where a claim has been never made in the defense presented no amount of evidence can be looked into upon a plea which was never put forward.

(7) Mr. Pradeep Dewan, learned counsel for the respondent, refuting the submission of Mr. Lonial urged that the basic pica in the plaint was that Sh. B.M. Lal, Director, Northern Region, and constituted attorney of the respondent company, was conversant with the facts and circumstances of the case. By virtue, of the power of attorney, executed in his favour, he was duly authorized to -sign and verify the plaint, and institute the suit. It was submitted that this squarely mel the requirement of order Vi Rule 6 Civil Procedure Code, of giving a concise statement of facts in the plaint. The power of attorney, which was issued in his favour and the resolution in support thereof were evidence by which the basic facts averred in the plaint were to be proved. Learned counsel for the respondent further sub milted that the said power of attorney and the resolution of 1994 had been duly proved on record. He submitted that the occasion to bring in the resolution of January, 1996 on record arose with a view to avoid any technical objection or challcngc,.flowi'ng from the predestination of the constituted attorney as Vice - President.

(8) The respondent company, therefore, vide the meeting and resolution of 24-1-1996, simply ratified the action already taken. The said events were subsequent events of which the Court could take judicial notice, without going through the requirement of a formal amendment being permitted. He submitted that the ratification, by the resolution and the minutes of meeting dated 24-1-1996, were again evidence of the plea and the basic averment with regard to the authority of Sh. B.M. Lal as a constituted attorney instituted the suit, which had been pleaded. Learned counsel in this connection relied on P.M. Seshadri Vs. G. Vasantha Pai and Others (1969 S.C. 692), wherein the Apex Court in an election matter observed ".......... the pica in essence was that cars were used for the purpose of conveying voters contrary to the prohibition contained in the Election Law. The names of the booths and the divisions in which the booths were situated together with the particulars of the cars and the persons primarily concerned with cars at the pooling booths have been mentioned. It is true that the drivers of the cars or the voters themselves have not been examined. But it has been sufficiently pleaded and proved that the cars were in fact used. The connection of Seshadri with the use of the cars has been specifically pleaded. In our opinion, the rest were matters of evidence which did not require to be pleaded and that plea could always be supported by evidence to show the source from where the cars were obtained, who hired or procured them and who used them for the conveyance of voters."

(9) Reliance was also placed on Rajesh Wadhwa Vs. Dr.(Mrs.) Sushma Govil . In this case, the first power of attorney was not a duly authenticated one by the notary and hence was not valid to give any authority to the attorney to act on behalf of the respondent. The second power of attorney which was produced at the stage of first appeal was a valid document and it also ratified the acts of the agent in instituting the eviction petition. The Court accepted the second power of attorney by which the institution of the eviction petition was ratified. Reference was next made by the counsel to the decision of (he Apex Court in United Bank of India Vs. Naresh Kumar and Others . The Apex Court while discussing the requirement under Order Vi Rule 14 and Order Xxix Rule 1 Civil Procedure Code with regard to the signing and verifying of the plaint, especially on behalf of a company and Corporation observed as under:- "........A person may be expressly authorized to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be expressed or implied. The court can, on the basis of (he evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleadings by its officer."

(10) Keeping in mind the aforesaid judicial pronouncements, let is consider the present case. As noted earlier, the objection of Mr. Lonial is that there being no plea or mention of the resolution of 24-1 -1996 in the plaint, no amount of evidence could be permitted to be looked at or produced in regard thereto. He submitted that the proper course was to move an amendment of the plaint and once the amendment was allowed, he would have no objection to the documents sought to be produced on record being proved in accordance with law.

(11) Looking at the plaint, it is clear that the essence of the pica is that Sh. B.M. Lal was a constituted attorney and had been authorized to institute the suit on behalf of the respondent company. Perhaps, it would have been desirable for the respondent in the replication to have refuted the averment in the written statement that there was no resolution. Failure to do so, however, cannot have the effect of precluding the respondent from leading evidence in support of the pica of Sh. B.M. Lal being the constituted attorney and being authorized to institute the suit. In fact, it is not disputed that the resolution and power of attorney of 1984, by virtue of which Sh. B.M. Lal was appointed the constituted attorney and authorized to institute the suit have been duly proved in evidence on the basis of the existing plea in the plaint did not mention any specific power of attorney or resolution. In my view, the plaint did contain the essential plea on the basis of which evidence could be led with regard to the resolution as well as the manner of authorization and the power of attorney which authorized the signatory to institute the suit.

(12) Coming to the present case and the course this litigation has taken so far, the apprehension of the respondent of technical objections being raised on the maintainability of the suit, could not be said to be a farfetched one. In Rajesh Wadhwa Vs. D. (Mrs.) Sushma Govil - Supra, the court at the appellate stage had taken into consideration a second power of attorney which ratified the institution of the eviction petition, when it was found that the First power of attorney was not duly authenticated. In United Bank of India Vs. Naresh Kumar - Supra, the Apex Court went to the extent of observing that even in cases where there was absence of a resolution or power of attorney but the pleadings had been signed by one of the officers, the corporation could ratify the said action of its officer in signing the pleadings. Further, such ratification can be expressed or implied. The Court can on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by its officer.

(13) In the light of the aforesaid observations, and specially where the essential plea with regard to the signatory being a constituted attorney and being authorized to institute the suit is there, the exercise of inherent power by the trial court in allowing the application moved under Order Xiii Rule 2 read with Section 151 Civil Procedure Code and permitting the said documents to be produced on record and to be proved in accordance with law cannot be faulted with. The observation of the Apex Court in M/s. Ganesh Trading Co. Vs. Moji Ram (AIR 1978 S.C.C. 484) are appropriate in a situation like this, "Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases arc meant to give to each side intimation of the case so that it may be met to enable courts to determine what is really at issue between the parties and to prevent deviation from the curse which litigation on particular causes of action must take."

(14) Accordingly, in these facts and circumstances of the case and especially since the essential plea already exists, it was not necessary to seek a specific amendment to plead the factum of the board meeting of 24-1-1996 and the resolution passed on the said date. In view of the foregoing discussion, there is no infirmity in the impugned order passed by the trial court warranting interference in the exercise of jurisdiction under Section 115 of the Code of Civil Procedure. The revision petition has no merit and is dismissed.