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KERALA HIGH COURT
K. Ramakrishnan, J.
V.P. Abdul Kareem —Petitioner
versus
Mehroof Manalody —Respondent
OP(C). No.2148 of 2016 (O)
Decided on 2.9.2016
Counsel for the Parties:
For the Petitioner:Sri. C.P. Mohammed Nias, Advocate
For the Respondent:Sri. P.B. Krishnan, Advocate
Headnote:Civil Procedure Code, 1908 – Section 26(2) r/w Order VI Rule 15(4) – Provisions procedural in nature – Directory and not mandatory – Proceedings of Hign Court on original side – Election petition – Non-compliance of requirement as to filing of affidavit will not render the plaint non est – Similarly verification of pleadings is directory and not mandatory – These defects are curable in nature – However, if defectes are not cured even after affording opportunity, it will end in rejection of the plaint or petition – Instanbtly, court below perfectly justified in permitting the petitioner to cure the defect in the affidavit filed along with the plaint u/s 26(2) and Order VI Rule 15(4), and instead of substituting the same with fresh affidavit stating the reason as to how the defect had crept in the earlier affidavit. (Para 13, 14, 18)
AIR 2005 SC 22; AIR 2008 SC 1577; AIR 2011 SC 463; AIR 2004 SC 38 – Relied upon
AIR 2000 SC 694; AIR 2000 SC 3026; (2012) 5 SCC 511 – Distinguished
AIR 2015 Orissa 110; AIR 2006 SC 1194; AIR 2005 Calcutta 145; AIR 2005 SC 3353 – Referred
Result:Petition dismissed.
K. Ramakrishnan, J.—The petitioner in this petition challenging the order passed by the 3rd Additional Sub Judge, Kozhikode in I.A.No.2897/2016 in O.S.No.366/12 under Article 227 of the Constitution of India.
2. It is alleged in the petition that the respondent herein filed Ext.P1 suit as O.S.366/2012 on the file of the 3rd Additional Sub Court, Kozhikode for realisation of Rs.81,87,328/- with interest. The amount was claimed on the basis of a memorandum of understanding entered into between the parties. Along with the suit, he had filed an affidavit as contemplated under Section 26(2) read with Order 6 Rule 15(4) of the Code of Civil Procedure. According to the petitioner, in the suit as well as in the affidavit, the respondent had stated that he is filing the suit for and on behalf of the company as chairman and managing director of M/s.Glosoft Technology Pvt. Ltd. The petitioner filed Ext.P2 written statement denying the allegations and liability to pay the amount claimed in the plaint. Ext.P3 is an affidavit filed by the respondent along with an application to amend the plaint in which he had described him as chairman and managing director of the company and by virtue of this amendment, he wanted to delete the seal affixed at the bottom of each page of the plaint. Ext.P4 is the affidavit filed along with I.A.2896/2016 for re-open the case and receive the fresh affidavit in lieu of the defective affidavit filed along with the plaint under Order 6 Rule 15(4) of the Code of Civil Procedure. In the affidavit it was mentioned that the suit was filed in his individual capacity and not as the chairman and managing director of the company and it was an inadvertent typographical error which creates an impression that the suit was filed by the company M/s.Glosoft Technology Pvt. Ltd through its managing director and the seal of M/s.Glosoft Technology Pvt. Ltd. was happened to be affixed by mistake and this defect was noted and brought to his notice only on 30.7.2016. Ext.P5 is the counter statement filed by the petitioner to I.A.2896/2016. Ext.P6 is the affidavit filed by the respondent along with I.A.2897/2016 to permit him to file a fresh affidavit in lieu of the defective affidavit which happened to be filed along with the plaint under Order 6 Rule 15(4) of the Code of Civil Procedure. The petitioner filed Ext.P7 counter statement denying the allegations and it was contended that the affidavit filed under Order 6 Rule 15 (4) of the Code of Civil Procedure along with the plaint at the time of institution of the suit cannot be a brushed aside and it cannot be substituted by a fresh affidavit, which will change the nature and character of the suit and hardship will be caused to the petitioner. Ext.P6 application was allowed by the court in part by the impugned Ext.P8 order, thereby the prayer to substitute the earlier affidavit by a fresh affidavit was declined, but the respondent has been permitted to file an additional affidavit in addition to the affidavit which has already been filed in compliance of section 26(2) read with Order 6 Rule 15(4) of the Code of Civil Procedure. This order is being challenged by the petitioner by filing this petition.
3. Heard Sri. C.P. Mohammed Nias, counsel appearing for the petitioner and Sri. S.V. Balakrishna Iyer, senior counsel appearing for the respondent.
4. The counsel for the petitioner submitted that in the plaint, the plaintiff has been described him as chairman and managing director of M/s.Glosoft Technology Pvt. Ltd. and in the affidavit also he had sworn to the affidavit as though the suit was filed by the company through him as its chairman and managing director. Without amending the plaint and after the evidence was over, he had now filed an application to receive an affidavit in lieu of the affidavit filed along with the suit as contemplated in Order 26 Rule 2 read with Order 6 Rule 15(4) of the Code of Civil Procedure, which is contradictory in nature and by subsequent aff
