Gurdev Singh Dhillon vs T.S. Mahal And Anr.
1998 Latest Caselaw 657 Del

JUDGMENT

Dr. M.K. Sharma, J.

1. The plaintiff instituted a suit against the defendants through his attorney seeking for a decree of declaration that the plaintiff is the legal and rightful owner of the suit property and also for delivery of possession of the suit properly.

2. In the plaint it is stated that the plaintiff is at present staying in the United States of America in view of business pre-occupation and, therefore, has instituted the present suit through his true and lawful attorney Shri G.R. Soni. It is also stated in the plaint that the plaintiff has executed a Power of Attorney in favour of Shri G.R. Soni, constituting and binding him as his lawful attorney with the powers to contest, sign, verify and file all legal proceedings for and on his behalf in this Court and even otherwise the power of attorney has been executed in favour of said Shri G.R. Soni to look after the interests of the plaintiff in the suit property. The plaint in the suit was also signed and verified by Shri G.R. Soni.

3. After service of summons and notices in the suit and the interim applications, the defendants appeared in the suit and filed an application under Order 7 Rule 11 CPC praying for rejection of the plaint on the ground that the suit has not been filed and instituted by a duly authorised agent as permitted by law. In the said application it was stated that the documents filed on record do not indicate any authorisation in favour of Shri G.R. Soni to file the suit and also to sign and verify the plaint

and to take other steps in the suit on behalf of Shri G.S. Dhillon, the plaintiff. The aforesaid application was registered as I.A. 9486/1996 to which reply has also been filed by the plaintiff contesting the allegations made' in the said application.

4. The defendant No. 1 also filed an application under Order 6 Rule 5 CPC with the prayer that the plaintiff be directed to furnish better particulars as detailed in para 4, 4(I), 4(II), 4(III) and 4(IV) of the application. The said application was considered by the Joint Registrar and by his order dated 20.9.1994 held that the particulars asked for by the defendant No. 1 in the application are very material for the purpose of proper adjudication between the parties and the same be supplied to defendant No. 1. In pursuance thereof, the plaintiff filed better and further particulars and supplied copy thereof to the defendant No. 1.

The defendant No. 1, however, while filing his written statement did not file any reply to the aforesaid better and further particulars furnished on behalf of the plaintiff. Thus, in view of the order dated 20.9.1994 passed by the Joint Registrar subsequent to which better particulars were furnished by the plaintiff to the defendant No. 1, an application has been filed by the plaintiff in this Court under Order 1 Rule 10 CPC and Order 6 Rule 17 CPC registered as LA. No. 1948/1995, seeking for addition of a party as a defendant and also for seeking amendment of the plaint. In the said application, the plaintiff has stated that the defendant No. 1 did not file any written statement in the suit and instead moved an application under Order 6 Rule 5 CPC for better particulars in which an order was passed by the Joint Registrar on 20.9.1994 directing the plaintiff to file better particulars in terms of which better particulars have been furnished. It is further stated that in view of the aforesaid order dated 20.9.1994, a necessity has arisen to amend the plaint.

5. By this common order, I propose to dispose of both the aforesaid applications seeking for rejection of plaint as also the application praying for impleadment addition of party and for amendment of the plaint.

I.A. No. 9486/1996.

I have heard the learned counsel appearing for the parties.

6. Counsel for the applicant/defendant No. 1 stated before me that the plaint has not been signed and verified by an authorised person nor the suit has been instituted by a duly recognised agent. In support of his submission, counsel for defendant No. 1 relied upon the provisions of Order 3 Rules 1 & 2 CPC and Order 6 Rule 14 CPC.

Order 3 Rule 1 CPC provides that any appearance, application or act in or to any Court is to be made or done by the party in person or by his recognized agent, or by a pleader appearing, applying or acting on his behalf. This provision enables a party and provides him with the facility to perform certain acts through others like recognised agents or pleaders which otherwise would have been required to be done by the person suing as plaintiff by himself.

Rule 2 of the aforesaid order specifies as to who could act as the recognized agents such as persons holding powers-of-attorney, authorizing them to make and to do such appearances, application and acts on behalf of such parties.

Order 6 Rule 14 CPC provides the mode and manner in which pleadings of the parties is to be signed. It lays down that every pleading shall be signed by the party and his pleader, 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.

7. A conjoint reading of the aforesaid provisions makes it crystal clear that a suit could be instituted also by a recognised agent apart from the person instituting the suit, provided he is so authorised by a Power of Attorney authorising him to make and to do such an appearance, application and act on behalf of such party and such authorised agent under the power given to him through the Power of Attorney could sign the pleadings or sue or defend on behalf of the person.

8. According to the defendant No. 1, the person namely, Shri G.R. Soni who has instituted the suit on behalf of the plaintiff and signed and verified the plaint was not duly authorised either to institute the suit in this Court or to sign and verify the pleadings in respect of the suit property.

9. Learned counsel appearing for the plaintiff on the other hand refuted all the aforesaid allegations and contended that Shri G.R. Soni was duly and legally authorised to act on behalf of the plaintiff and a Power of Attorney in that regard was also executed by the plaintiff in favour of Shri G.R. Soni and, therefore, on the basis of the aforesaid Power of Attorney, Shri G.R. Soni was a recognised agent and was fully competent to institute the suit and was also authorised to sign and verify the pleadings.

10. My attention was drawn to the original Power of Attorney placed on record. There is a special Power of Attorney placed on record dated 4.11.1988 whereby Shri G.S. Dhillon appointed Shri G.R. Soni to represent on his behalf in any Court proceedings related to Y-47, Okhla Industrial Area-II, New Delhi, which is the suit property. Another special Power of Attorney dated 8.3.1998 executed by Shri G.S. Dhillon, the plaintiff in favour of Shri G.R. Soni, has also been placed on record. The aforesaid Power of Attorney stated that Shri G.S. Dhillon had executed a special Power of Attorney on 4.11.1998 whereby he had appointed Shri G.R. Soni as his attorney to represent him in any Courts of Law or in other legal proceedings related to his suit property. It was further stated that the said attorney in terms of the above authorisation instituted a Civil Suit being the present suit in respect of the suit property on his behalf and has also signed and verified the plaint on his behalf on the basis of authority vested in him by the said Power of Attorney dated 4.11.1998. It was also stated that the executant had authorised and empowered Shri G.R. Soni to file the aforesaid suit and to sign and verify the plaint on his behalf and that the world "represent" used in Power of Attorney dated 4.11.1988 was incorporated to connote and signify the authority vested in his attorney to file, sign and verify the plaint and to do all other incidental acts in relation thereto on his behalf in the suit. The executant has also stated in the said power that he has ratified all acts and deeds of said Attorney in filing and presenting the Suit being Suit No. 2807/1989 before this Court. It was further reiterated by the executant that Shri G.R.

Soni is his duly constituted attorney acting for him, in his name and on his behalf to represent him before the High Court of Delhi for all intents and purposes, in connection with the present suit and to appear for and prosecute and defend all actions and proceedings, to sign and verify all plaints, written statement(s) and other pleadings, affidavits, applications, appeals etc.

11. The defendant No. 1 through the present application has sought for rejection of the plaint on the grounds as provided under Order 7 Rule 11 CPC. The said Rule enacts that the plaint could be rejected in a case where any of the four Clauses mentioned in Clause (a) to (d) is attracted. Counsel for the defendant No. 1 stated that in the present case Clause (d) of the aforesaid provision is attracted as the suit was not instituted by a duly authorised agent and the plaint was not signed and verified by a duly authorised person and, therefore, barred by law.

12. The plaint was filed on behalf of the plaintiff by Shri G.R. Soni who had a Power of Attorney in his favour to represent the plaintiff in any Court proceedings relating to the suit property. Black's Law Dictionary, Sixth Edition, has given the meaning of the word "represent" as 'to appear in character of; personate; to exhibit, to expose before the eyes; to represent a person; is to stand in his place; to speak or act with authority on behalf of such person; to supply his place; to act as his substituted or agent. The aforesaid meaning given to the word "represent" clearly indicates that the person who is authorised to represent the executant of the Power of Attorney is empowered to represent him and to stand in his place and to speak or act with authority on behalf of the said person and to act as his substitute or agent.

13. Thus, by virtue of the special Power of Attorney which is dated 4.11.1988, Shri G.R. Soni, was appointed as a recognised agent of the plaintiff and he fulfills all the necessary criteria's to act as the recognised agent of the plaintiff. The aforesaid Power of Attorney in favour of Shri G.R. Soni by the plaintiff meets the requirements as provided for under Order 3 Rules 1 & 2 CPC and also the provisions of Order 6 Rule 14 CPC. Even if it is assumed that the aforesaid special Power of Attorney did not satisfy the requirements of Order 3 Rules 1 & 2 CPC and Order 6 Rule 14 CPC, the subsequent Power of Attorney placed on record by the plaintiff executed on 8.3.1988 by the plaintiff in favour of Shri G.R. Soni ratified all the works, acts and deeds of said Shri G.R. Soni in filing the present suit in this Court. Contents of the aforesaid Power of Attorney have been extracted hereinabove and, in my considered opinion, both the Power of Attorneys read together satisfy all the pre-conditions laid down under Order 3 Rules 1 & 2 CPC and Order 6 Rule 14 CPC and, therefore, the objection raised by the defendant No. 1 with regard to the authority of Shri G.R. Soni instituting the present suit and signing and verifying the pleadings is misplaced and baseless. The application has no merit and is dismissed accordingly.

I.A. 1948/1995.

14. After the filing of the suit as indicated above, the defendant No. 1 filed an application for providing him with further and better particulars and in terms of the order passed by the Joint Registrar of this Court, the plaintiff also furnished better and further particulars.

15. I have carefully scrutinised the averments made in the application seeking for amendment of the plaint and for addition of a party and also seen the portions which the plaintiff desires to be incorporated in the plaint.

16. The suit was instituted by the plaintiff seeking for declaration and possession and, therefore, the title of the suit is being sought to be amended as a suit for declaration, possession, mesne profits and damages, as although in the relief portion of the plaint decoration is sought for, mention of the same has not been made in the title of the suit. No prejudice could be caused to defendant No. 1, if such amendment is allowed. The plaintiff has also sought for substitution of the paragraphs 7 and 8 of the plaint with the passages mentioned in paragraph 4 of the application praying for amendment.

On comparing the said statements with the better and further particulars filed by the plaintiff on the request of the defendant No. 1, I find that the said statements are almost the same portion which is sought to be incorporated now by this application for amendment. On consideration of the same, the aforesaid amendment sought for is found to be amplification and elucidation of facts already on record and, in my considered opinion, the same does not in any manner change the nature and character of the suit. The said facts were already provided for by the plaintiff to the defendant No. 1 in pursuance of his request for furnishing better and further particulars in respect of the statements made in paragraphs 7 and 8 of the plaint and in the light thereof, said paragraphs 7 and 8 were sought to be deleted and in their place, the aforesaid better and further particulars provided by the plaintiff to the defendant No. 1 are sought to be incorporated. Therefore, the defendant No. 1 cannot be said to be prejudiced in any manner if the amendment sought for is allowed. Such amendment, in my considered opinion, would also root out multiplicity of proceedings.

17. The Supreme Court has consistently held that all amendments ought to be allowed which satisfy the two conditions (a) not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. It has also been laid down by the Supreme Court that only such amendments should be refused which might cause an injury to the other side which could not be compensated in costs. In Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon , their Lordships have held that:-

"Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure."

The Supreme Court has also observed that the Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which might not be compensated for by an order of costs.

18. On consideration of the nature of amendment sought for by the plaintiff in the present case, I am satisfied that no injury would be caused to defendant No. 1 if the aforesaid amendment is allowed and the party sought to be added as one of the defendants is imp leaded as a defendant. The suit is also at the initial stage. The aforesaid amendment, if allowed, would avoid multiplicity of proceedings and is necessary for the purpose of determining the real question in controversy between the parties. Shri S.S. Mahal sought to be added as one of the defendants is thus imp leaded as defendant No. 3 and the amendment sought for in the application stands allowed and directed to be incorporated. Suit No. 2807/1989.

19. Amended memo of parties and the amended plaint are on record. In terms of the aforesaid addition of a party defendant, let summons of the suit be issued to the defendant No. 3, for 5th October, 1998. The defendant No. 1 as also to defendant No. 2 are allowed six weeks time to file the amended written statement. Replication thereto, if any, shall be filed before the next date.

Renortify on 5th October, 1998 for further orders.