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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.J.KATHAWALLA, MILIND N. JADHAV, JJ.
Sanjay Mishrimal Punamiya of Mumbai Indian Inhabitant - Appellant
Versus
Sheikhah Fadiah Saad Al Abdulla, Al Sabah, through constituted Mr. Firas El-Kurdi - Respondent
Appeal No.34 of 2021, 551 OF 2019 In Notice Of Motion No.534, 528 of 2015 In Suit No.175 of 2014 With Interim Application No.555, 543 OF 2019
Decided on : 23-03-2022
Civil Procedure Code, 1908 - Order VI Rule 15, Rule 14, Rule 2, Order VII Rule 11, Order XIX Rules (1) and (3), Rule 3 of O. XIX, Order IV, rule 2 and Section 151 - Maharashtra Stamp Act, 1958 - Arms Act, 1959 - Sections 3 and 25 – Criminal Procedure Code, 1973 - Section 156(3) - Bombay High Court (Original Side) Rules, 1958 - Rule 47 - High Court Rules - Rule 44 - Preventive Detention Act, 1950 - Trade Marks Act, 1999 - Landlord - Tenant - Possession of a Room - Seeking Dismissal of Suit - Whether verification appended to present Plaint fulfills requirements of Order VI Rule 15 of CPC - Whether Prothonotary and Senior Master of this Court is authority who is to be satisfied in relation to fulfillment of requirements for purposes of verification under Order VI Rule 15 as per CPC read with Bombay High Court (Original Side) Rules, 1980 - Whether an Affidavit as contemplated under Order VI Rule 15(4) must meet requirements as laid down under Order XIX Rules 1 and 3 of CPC - Whether signatory has personal knowledge are not required to be gone into at stage of Pleading - Whether Pleading meets requirement as laid down under Order VI Rule 15 – Held, It is true that when a plaint is presented to Court or to such officer as Court appoints, it is open to Court or to officer to point out de facts or irregularities to person presenting suit and to require him to rectify de facts or irregularities - But can it be said that de facts or irregularities would make presentation of suit itself invalid although plaint is admitted and particulars of plaint are entered in a register of suits as provided by Order IV, rule 2 - In this connection it is necessary to note that Order VII, rule 11, which refers to rejection of a plaint, enumerates only four cases in which a plaint has to be rejected, but it does not enumerate any of the facts or irregularities referred to in Order VI, Rules 14, Order VI, Rule 15, or Order VI, Rule 2 - It is clear from provision contained in Order VI that these rules relate only to procedure, and better view would be to regard them as mere matters of procedure and to hold that if a plaint is not properly signed or verified but is admitted and entered in register of suits it does not cease to be a plaint and suit cannot be said not to have been instituted merely because of existence of some defects or irregularities in matter of signing and verification of plaint - This is also view that has been rightly been taken by Learned Single Judge – Court would like to add that Court is not to be understood at all as saying that verification clause of present Plaint has to be cured but are merely noting this principle to state that even if there were a defect it cannot lead to dismissal of Suit - It has been pointed out to Court that Plaintiffs Notice of Motion was directed to be heard expeditiously by an Order of Supreme Court – Court accordingly direct Learned Single Judge hearing such Notices of Motion to hear and decide Plaintiffs Notice of Motion for interim reliefs at earliest – Appeals dismissed.
JUDGMENT :
S.J.KATHAWALLA & MILIND N. JADHAV, JJ.
1. These Appeals challenge a common Order of the Learned Single Judge dated 6th September 2021 (“the Impugned Order”). The Appellant in Appeal No.551 of 2019 is the Original Defendant No.1 (“Defendant No.1”) in the Suit and also Respondent No.2 in the Appeal No.34 of 2021. Defendant No.1 claims to be in possession of Flat No. 21 as a tenant. Flat No. 21 is located on the 5th Floor in the building known as Al Sabah Court located at Marine Drive. Respondent No.2 in Appeal No. 551 of 2019 is Defendant No.2 (“Defendant No.2”) in the Suit and Respondent No.3 in the connected Appeal No.34 of 2021. Defendant No.2 claims to be in possession of a room on the ground floor next to Room No.1 in the same building as a tenant. The Appellant in Appeal No.34 of 2021 is the Defendant No.3 in the Suit and Respondent No.3 in the Appeal No. 551 of 2019 (“Defendant No.3”). Defendant No.3 claims to be in possession of a room located adjacent to the terrace on the 6th floor in the same building as tenant. Respondent No.1 who is the original Plaintiff (“Plaintiff”) in the Suit is the landlord of the entire Building - Al Sabah Court. Al Sabah Court belongs to the Plaintiff and the Royal Family of Kuwait of which the Plaintiff is also a member.
2. By the Impugned Order the Learned Single Judge has rejected Notice of Motion No.528 of 2015 and Notice of Motion No.534 of 2015. Notice of Motion No.528 of 2015 was taken out by Defendant No.1 for directions to the Plaintiff to prove to the satisfaction of the Court that Firaz El-Kurdi, the Power of Attorney holder of the Plaintiff (“Constituted Attorney”), being the person who has verified the Plaint and filed an Affidavit in Support of the Plaint, is acquainted with the facts of the case in terms of Order VI Rule 15 of the CPC 1908. Defendant No.3, the Appellant in the Appeal No.34 of 2019, challenges the Impugned Order dismissing Notice of Motion No. 534 of 2015 taken out by the said Defendant No.3 seeking dismissal of the Suit and/or rejection of the Plaint as filed by the Plaintiff under Order VI Rule 14 or under Order VII Rule 11 of CPC.
3. It is the case of the Defendants that the Plaintiff, who claims to be one of the heirs of the deceased landlord (Shaikh Abdullah Al-Salem Al-Sabah, Late Emir of Kuwait) of Al Sabah Court Building in which the Suit Premises are situated, has filed a suit through the Constituted Attorney, Firaz El-Kurdi, who is not personally aware of the facts and circumstances of the case. It is then contended that despite being unaware, the Constituted Attorney has affirmed the Plaint on the basis of Power of Attorney of the Plaintiff which, on the date of verification of the Plaint i.e. on 5th December 2013 was not properly stamped as per the Maharashtra Stamp Act. It had therefore been prayed that the verification in the Plaint does not meet the requirements of Order VI Rule 15 and that the Plaintiff should satisfy the Court on the compliance of provisions of Order VI Rule 15 and/or the Plaint be dismissed on the grounds of defective verification.
4. Further, it has also been argued in these Appeals that there is noncompliance of provisions of Order VI Rule 15(4) that relates to an Affidavit in support of the pleadings. It is the case of the Defendants that since the Affidavit in support of the Plaint does not disclose sources of the information set out in the Plaint and since the deponent does not have any personal knowledge as regards the averments so made, the same does not meet the requirements of Order VI Rule 15(4).
5. Another issue that was argued, by placing reliance on the Bombay High Court (Original Side) Rules, 1958, is that if the verification does not comply with Order VI Rule 15, the Plaint ought not to be admitted to the register of suits under Rule 47 and should continue to remain under lodgement under Rule 45. It was
The main legal point established is the strict adherence to the rules governing affidavits, the prohibition of advocate's clerks signing affidavits, and the impact of non-compliance on the court's de....
The sufficiency of pleadings in a suit for specific performance and the admissibility of evidence in compliance with the relevant provisions of the Civil Procedure Code and the Specific Relief Act.
The correctness of the documents relied upon by the plaintiff in a suit should be determined during the trial and not at the interlocutory stage.
The power to strike out pleadings under Order VI Rule 16 of the CPC should be exercised sparingly and with extreme care, caution, and circumspection.
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