1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2451 OF 2008 WITH CIVIL APPLICATION ST. No.22701 of 2008 Shersingh s/o Hirasingh Fauji, R/o-Shahid Bhagatsingh Road, Badpura, Nanded. ...PETITIONER. VERSUS The Cotton Research Centre, Nanded, Through it's Cotton Specialist, Lalitdas s/o Anandrao Deshpande, R/o-Hyderabad Road, Near Bafna Tea Point, Nanded. ...RESPONDENT. ... Mr.S.S. Choudhari Advocate for Petitioner. Mr.N.T. Tribhuvan Advocate for Respondent sole. ... CORAM: K.K. TATED, J. DATE : 21ST AUGUST, 2009. PER COURT : 1. Heard learned counsel for the Petitioner and 2 learned counsel for the Respondents. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, matter is taken up for final hearing at the stage of admission. 2. By this Petition under Article 226 and 227 of the Constitution of India, the Petitioner - original plaintiff challenges the order dated 17th January, 2008 passed by Civil Judge, Senior Division, Nanded below Exhibit P-8 allowing the Respondent -original defendant to rectify the defect in their written statement i.e. verification of the written statement. 3. The Petitioner filed Special Civil Suit No.31 of 2006 in the Court of Civil Judge, Senior Division, Nanded for perpetual injunction restraining the defendant, its servants, agents, or any other person claiming on behalf of defendant from causing any sort of obstruction and interference in the peaceful possession of the plaintiff's over the land Survey No.86 (1-C) admeasuring 50' X 485' situated at Degloor- Hyderabad road corner, Nanded. In the said Suit the Respondent -defendant filed their written statement on 5th 3 September, 2006 at Exhibit 47 along with affidavit in support of written statement at Exhibit 48. On 27th November, 2007 the Petitioner preferred application for rejection of Respondent's written statement on the ground that it was not verified as required under Order 6 Rule 15 of the Code of Civil Procedure. Thereafter the Respondent - original defendant immediately filed an application on 17th November, 2007 for rectifying their defects in the written statement and same was allowed by the trial Court by the impugned order. 4. Learned counsel for the Petitioner states that it is the duty of the defendant to file written statement within 30 days from the date of service of summons or maximum within 90 days. In the present case the Respondent filed their written statement on 5th September, 2006 without any verification and therefore that cannot be treated as written statement in law. The trial Court erred in coming to the conclusion that the technical defects can be cured later on also. On the basis of these submissions, learned counsel for the Petitioner states that impugned order dated 17th January, 2008 is liable to be set aside. 4 5. On the other hand, learned counsel for Respondent - original defendant submitted that they filed written statement on 5th September, 2006 along with affidavit in support of written statement. By mistake it remained on their part to verify the written statement. Therefore, as soon as they learnt about the said defect when the Petitioner preferred application dated 27th November, 2007 for rejection of their written statement, they preferred application for rectifying the defect in the written statement. Learned counsel for Respondent states that office of the Civil Judge, Senior Division, Nanded accepted the said written statement dated 5th September, 2006 without raising any objection. First time they learnt about the said defect when Petitioner preferred application on 27th November, 2007. In any case on technical defects litigant should not suffer. In support of his contention, learned counsel for Respondent relied on Authority in the matter of Uday Shankar Triyar vs. Ram Kalewar Prasad Singh and another, reported in 2006 (2) Bom.C.R. No.636. In that case, the Apex Court held that any defect in signing memo of Appeal or in the authority of the person signing the Memorandum of 5 Appeal, or omission to file the vakalatnama executed by the appellant will not invalidate Appeal Memorandum, if defect is not deliberate and signing of the Appeal Memorandum or the presentation thereof before Appellate Court was with knowledge and the authority of the appellant. He specifically relied on Para Nos. 15, 16 and 17 which reads thus: "15. It is, thus, now well-settled that any defect in signing the memorandum of appeal or any defect in the authority of the person signing the memorandum of appeal, or the omission to file the vakalatnama executed by the appellant, along with the appeal, will not invalidate the memorandum of appeal, if such omission or defect is not deliberate and the signing of the Appeal memorandum or the presentation thereof before the appellate court was with the knowledge and authority of the appellant. Such omission or defect being one relatable to procedure, it can subsequently be corrected. It is the duty of the Office to verify whether the memorandum of appeal was signed by the appellant or his authorized agent or pleader holding appropriate vakalatnama. If the Office does not point out such defect and the appeal is accepted and proceeded with, it cannot be rejected at the hearing of the appeal merely by reason of such defect, without giving an opportunity to the appellant to rectify it. The requirement that the appeal should be signed by the appellant or his pleader (duly authorized by a Vakalatnama 6 executed by the appellant) is, no doubt, mandatory. But it does not mean that non-compliance should result in automatic rejection of the appeal without an opportunity to the appellant to rectify the defect. If and when the defect is noticed or pointed out, the court should, either on an application by the appellant or suo motu, permit the appellant to rectify the defect by either signing the memorandum of appeal or by furnishing the vakalatnama. It should also be kept in view that if the pleader signing the memorandum of appeal has appeared for the party in the trial court, then he need not present a fresh Vakalatnama along with the memorandum of appeal, as the Vakalatnama in his favour filed in the trial court will be sufficient authority to sign and present the memorandum of appeal having regard to Rule 4(2) of Order 3 CPC, read with Explanation [c] thereto. In such an event, a mere memo referring to the authority given to him in the trial court may be sufficient. However, filing a fresh Vakalatnama with the memo of appeal will always be convenient to facilitate the processing of the appeal by the office." "16. An analogous provision is to be found in Order 6 Rule 14 CPC which requires that every pleading shall be signed by the party and his pleader, if any. Here again, it has always been recognized that if a plaint is not signed by the plaintiff or his duly authorized agent due to any bona fide error, the defect can be permitted to be rectified either by the trial court at any time before judgment, or even by the appellate court by permitting appropriate amendment, when such defect comes to its notice during hearing. " 7 "17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a hand-maiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well recognized exceptions to this principle are :- i) where the Statute prescribing the procedure, also prescribes specifically the consequence of non- compliance. ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it; iii) where the non-compliance or violation is proved to be deliberate or mischievous; iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court. v) in case of Memorandum of Appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant; " 8 6. Learned counsel for the Respondent also relied on the Authority in the matter of The Prince Line Ltd. vs. The Trustees of the Port of Bombay, reported in A.I.R. (37) 1950 Bombay Page 130. In that case the Bombay High Court held that party would not be deprived of his right to plead bar of limitation at subsequent stage. Head Note (a) of the said Authority reads as under: "(a) Civil P.C. (1908), O.4, r.1; O.6, Rr.14 and 15 - Institution of suit - Re-presentation of plaint after amendment - Plaint not properly singed and verified - Court while granting opportunity to plaintiff to cure defect, reserving to defendant right to plead bar of limitation - Defendant would not be deprived of his right to plead bar of limitation at subsequent stage." " Unless and until a plaint is presented to the Court complying with the provisions contained in O.6, R.14 and O.6, R.15, it cannot be said that a proper plaint is presented to the Court and unless such a proper plaint is presented to the Court, it cannot be said that the suit has been instituted 9 to the Court by a party. The Court has always got the discretion, if a plaint is not properly presented or is not signed and verified in accordance with the provisions of O.6, R.14, and O.6 R. 15, to allow the plaintiff to remedy the defect at a later stage even though the period of limitation may already have expired. But that is a matter of discretion of the Court which the Court exercises after due consideration of all the facts and circumstances of the case before it. If after a due deliberation of all these facts, the Court comes to the conclusion that it is just that, in the exercise of its discretion, it should allow the defect to be cured, it can do so irrespective of the fact that the defendant has vested in him by that time a right to plead the bar of limitation. But where while granting the amendment or the opportunity to the plaintiff to cure the defect, the Court reserves unto the defendant the right to plead the bar of limitation, the defendant would not be deprived of his right to plead the bar of limitation and the plaintiff would have to meet that point when properly raised by the defendant at any subsequent stage." 10 7. In the present case, the trial Court rightly held that non verification of the written statement along with affidavit, is mere a technicality. Considering the Judgment cited by the learned counsel for the Respondent and considering the impugned order dated 17th January, 2008 passed by the trial Court, I do not find any substance in the present Writ Petition and the same is dismissed. Rule stands discharged. 8. In view of the dismissal of Writ Petition, nothing survives in the Civil Application St. No.22701 of 2008 and the same is disposed of. [K.K. TATED, J.] asb/AUG09/wp2451.08