Alka Kasana vs Indian Institute Of Technology
2015 Latest Caselaw 6179 Del

*      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

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

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

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

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.

(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.

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

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

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.

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.

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.

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

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

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

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

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

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