1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 7862 OF 2009 Laxmibai Babruwahan Jodtale Deceased Through, Balaji S/o Babruwan Jodtale Age : 34 years, Occu : Agril., R/o Hasegaonwadi, Tq.Ausa, Dist.Latur ..PETITIONER VERSUS 1. Thakubai W/o Shivaji Jodtale Age : 26 years, Occu : Household, R/o Hasegaonwadi, Tq. Ausa, Dist. Latur At present residing at C/o Goroba Shingade, Peth, Nilanga, Tq. Nilanga, Dist. Latur 2. Babruwan S/o Ram Jodtale Age : 63 years, Occu : Agril, R/o Hasegaonwadi, Tq. Ausa, Dist. Latur ..RESPONDENTS ..... Mr. A.M. Gaikwad, advocate for petitioner. ..... CORAM : R.M.BORDE,J DATE : 30th August, 2010 ORAL JUDGMENT : 1. Heard Mr. A.M. Gaikwad, learned Counsel appearing for petitioner. None appears for respondents, though served. 2 2. The petitioner is challenging the order passed by the Adhoc District Judge-2, Latur on 26.10.2009 below Exhibit-27 in Regular Civil Appeal No.98 OF 2006, whereby the application tendered by the petitioner seeking permission to sign the amended plaint Exhibit-1/2 as well as Exhibit-0/1 have been turned down. 3. One Laxmibai filed Suit bearing Regular Civil Suit No.184 of 1999 claiming partition and separate possession of the property involved in the suit. It is stated that Laxmibai died on 30th March, 2000 and after her demise, the name of her son Balaji was taken on record as L.Rs. of Laxmibai in view of the order passed on 1st October, 2001. At subsequent stage of the proceedings on 05.11.2003, the husband of deceased Laxmibai, original plaintiff came to be impleaded as defendant. The amended plaints were presented at Exhibit-1/2 and Exhibit-0/1 during continuance of proceedings by the L.Rs. of deceased plaintiff. The suit proceeded and after receiving the evidence led by both the parties, the trial Court granted decree in favour of the plaintiff in view of the judgment and 3 decree dated 03.07.2006. The defendant preferred Regular Civil Appeal No.98 of 2006 and same is pending. 4. It transpires that during continuance of the appeal, that amended plaints which were tendered by the plaintiff were not signed by L.Rs. of plaintiff. Application came to be tendered by Balaji i.e. petitioner herein seeking permission of the Court to put his signature on the plaint. Application was considered initially by the Court and in view of the order passed on 19.03.2008 application was rejected. The petitioner approached this Court by presenting Writ Petition No.3187 of 2008 and on consideration of contentions raised by both the parties, this Court partly allowed the Writ Petition and remitted matter back to the Appellate Court. This Court also directed the Appellate Court to consider the effect of affidavit sworn by advocate for the plaintiff, which is placed on record to support the contentions raised in the application at Exhibit-27. The First Appellate Court however, after hearing the contentions of both the parties was pleased to reject the application at 4 Exhibit-27 again, which order passed by the Appellate Court on 26.10.2009 is subject matter of challenge in this Petition. 5. I have perused the application as well as the impugned order passed by the Appellate Court and heard the arguments advanced by the counsel appearing for the petitioner. 6. It is not controverted that the petitioner herein-Balaji S/o Babruwan Jodtale is L.Rs. of deceased Laxmibai and his name has been brought on record after demise of Laxmibai during continuance of suit. The trial Court allowed the application tendered by the heir of deceased Laxmibai i.e. Balaji for his impleadment. As a consequence of impleadment of Balaji as heir of deceased Laxmibai amended plaint was required to be presented, which according to petitioner was signed by advocate. It is not controverted that the plaint as presented originally by deceased Laxmibai was signed by her. The mistake that occurred in failure of heir of deceased Laxmibai to put his signature on amended plaint can be said to 5 be a technical defect, which can be cured. 7. The petitioner seeks leave to place reliance on judgment in the matter of Omprakash Dinodia V/s Ashalata w/o Late Dr. Anant reported in 2002 (Supp.) Bom.C.R.8. This Court while dealing with the similar circumstances has observed in paragraph no.5 of the judgment that non signing of pleadings by the plaintiff is curable defect and as such at appellate stage while according the permission to plaintiff to sign the plaint as well as verification, this Court accorded permission for curing of the defect. The petitioner also seeks leave to place reliance on the reported judgment in Abdul Aval @ Chakuwalla V/s Sayed Mohamed Ali Usmanali & others reported in 2001(2)Bom.C.R. 153. It is held by this Court that the defects in the matter of signing below the verification clause in the plaint is curable defect and same can be permitted to be rectified at a latter stage of the proceedings. The reference is made to the observations of this Court in the judgment reported in (All India Reporter V/s Ramchandra)1 reported in 1959(62) Bombay Law Reporter 251. The observations 6 made in the above judgment is as under: "If a plaint is not properly signed or verified but is admitted and entered in the register of suits it does not cease to be a plaint and the suit cannot be said not to have been instituted merely because of the existence of some defects or irregularities in the matter of signing and verification of the plaint. When a defective plaint is rectified and re-signed and re-verified on a subsequent date, the re-signing or the re- verification of the plaint relates back to the original date of the suit. Even when the plaint is amended after it is properly instituted, the amendment relates back to the original plaint unless the amendment adds new parties or new properties." 8. The Apex Court Court in the mater of (United Bank of India V/s Naresh Kumar)2, reported in, 1996(6)S.C.C. 660 has held that substantive rights should not be allowed to be defeated on technical grounds of procedural irregularity so as to ensure that no injustice is done to any party and permitted rectification of defect in presenting suit on behalf 7 of the company by an officer not authorised in that behalf. In the instant matter also the defect which is pointed out is merely of a technical characters and irregularity that has occurred is curable. 9. The ends of justice can not be permitted to be defeated merely on account of technical defects as pointed out in the instant matter. Petition therefore deserves to be allowed and same is accordingly allowed. The order passed by the Adhoc District Judge-3, Latur on 26.10.2009 in Regular Civil Appeal No.98 of 2006 below Exhibit-27 is quashed and set aside and application tendered by the plaintiff- petitioner herein to the Appellate Court shall be deemed to have been allowed. 10. Rule is accordingly made absolute. In the facts and circumstances of this case, there shall be no order as to costs. (R.M.BORDE) JUDGE gas/wp7862.09