Tanish Dahuja*
The main object of Code of Civil Procedure is to consolidate and amend the law relating to the procedure of civil courts in India.
Order VI of
the CPC covers pleadings in general.
Pleading is a formal statement of the
cause of an action or defence and includes a written statement or a plaint,
forming the backbone of every suit. Pleadings need to be properly drafted with
clear and concise language so as to avoid any ambiguity, and should be inclusive
of all the material facts.
The plaint should support the cause of
action of the plaintiff and, written statement should respond to every fact
alleged in the plaint as well as the introduction of any new fact that may favour
the defendant.
Verification of Pleadings
and Amendment thereof:
Order
VI Rule 15 of The Code of Civil Procedure, 1908 (CPC) provides
that every pleading has to be verified at the foot by the
party or by one of the parties pleading or by some other person acquainted with
the facts of the case. The object of verification is to fix on the party verifying responsibility
for the statements that it contains. It should not be treated as more
formalities.
The verification should be signed by the person making it and should state
the date on which and the place at which it was signed. The person verifying
the pleading has to also furnish an affidavit in support of his pleading.
While highlighting the purpose and importance of the verification, the
Hon’ble Delhi High Court opined that the statutory provision
for verification is to fix responsibility on the party or person for
statements made in the pleadings and to prevent
false pleadings being recklessly filed or false allegations being
recklessly made. Solemn pleading before a court must have some sanctity and for
that purpose the rule makes provision by insisting upon the
competency of the person verifying, where he is somebody other than
the actual party concerned, by requiring him to prove to the
satisfaction of the court his acquaintance with the
facts of the case[1].
Since verification is an indispensable part of a pleading and sine qua the
pleading is incomplete, it is very much important that the verification is made
in a concise language adhering to the requirements of Order VI Rule 15.
However, omission to verify or a detective verification can be remedied at
a later stage, and is mere irregularity within the meaning of Section 99 of CPC.
There is no designated separate provision for the amendment of verification
of a pleading, but is implicit under Order VI Rule 17 of CPC which contains
general provisions for amendment of pleadings.
Order VI Rule 17 of CPC says that The Court may at any stage of the
proceedings allow either party to alter or amend his pleadings in such manner
and on such terms as may be just, and all such amendments shall be made as may
be necessary for the purpose of determining the real question in controversy
between the parties.
It has been held by The
Bombay High Court that if a plaint is not properly signed or verified or
presented the Court has always got the discretion to allow the plaintiff to
remedy the defect at a later stage even though the period of limitation may
have already expired and the defendant has vested in him by that time a right
to plead the bar of limitation, and that if that discretion is exercised by the
Court, the curing of the defect or the amendment of the plaint would he
effective as from the date of the institution of the suit itself, and it would
not be open to the defendant to plead the bar of limitation[2].
Whereas by
the Code of Civil Procedure (Amendment) Act, 2002 a new proviso has been added
to the rule, namely that no application for amendment of the pleadings shall be
allowed after the trial has commenced unless the Court concludes that despite
due diligence, the party could not have raised the matter before the
commencement of trial.
In Salem Advocate
Bar Association, Tamil Nadu v. Union of India & Ors.[3],
the Hon’ble Supreme Court has held that the object of adding the proviso is to
prevent frivolous applications which are filed to delay the trial.
In Vidyabai and
others v. Padmalatha and another[4],
Hon’ble Supreme Court has discussed the legislative intent behind bringing the
proviso to Rule 17 of Order VI of CPC. At para 7 of the said judgment, it was
opined that the provisions of Order VI Rule 17 of the CPC are in mandatory
form. The court’s jurisdiction to allow an application under Order VI Rule 17
of CPC is taken away unless the conditions precedent thereof are satisfied
i.e., the court must come to a conclusion that in spite of due diligence the
parties could not have raised the matter before the commencement of trial.
There can be different kinds of
defects w.r.t. verification of pleadings, like-
·
Omission to
verify
·
Omission to
sign/put date on the verification
·
Wrong date on
verification
·
Unclear or
ambiguous language of verification
·
Failure to
specify by reference the paragraphs known/believed to be true etc.
Courts in India have been
themselves ordering the rectification of verification or allowing the parties
which request the same, one can find plethora of judgements of Hon’ble Supreme
Court and High Courts wherein the Courts have held defects in verification to
be curable ones.
In the Year 1959, The Bombay High Court in
the case
All India Reporter Ltd. And Anr. v.
Ramchandra Dhondo Datar[5],
observed that the
general consensus of authority of the Bombay High Court and other High Courts
is in favour of the view that defects and irregularities in the matter of
signing, verifying, or presenting plaints are mere irregularities of procedure
which do not make the suit ineffective, inoperative, or void. The existence of
such defects does not mean that the suit had not been filed. Even when the
plaint is amended after it is properly instituted, the amendment relates back
to the date of the original plaint unless the amendment adds new parties or new
properties.
In line with the Bombay High
Court’s observation, The Delhi Hight Court in the year 1974 in the case
State of Punjab v. I.M. Lall[6],
opined that Irregular verification is an irregularity, which does
not go to the root of the case and the court ought to have given the
parties an opportunity to correct the irregularity by filing an affidavit or
otherwise and if it found that still the irregularity was not corrected, it
could in the case of the plaintiff stay the suit or if necessary,
reject his plaint as not fulfilling the requirement of law, but
dismissal of the suit was clearly illegal and unwarranted.
The Hon’ble Supreme Court
expressed similar opinion in 2004 in the case
Regu Mahesh @ Regu Maheshwar Rao v.
Rajendra Pratap Bhanj Dev and another[7].
In this case the High
Court dismissed the Election petition on reasons of irregularities in
affidavits and verification. The Apex Court in appeal observed that “sub-rule
(2) of Rule 15 prescribes, a person making a verification is required to
specify by reference to the numbers of paragraphs of the pleadings what he
believes on his own knowledge, and what he reveals upon information received
and believed to be true. This, admittedly, has not been done in the present
case.”
The Court while dealing
with compliance of Rule 15 (2) of Order VI relying upon its earlier triple
bench judgment in case of F.A.
Sapa v. Singora[8],
held that defect in verification or an affidavit is curable. The Court also
explained the difference between a curable defect and a defect continuing in
the verification of affidavit without any effort being made to cure the defect.
In F.A. Sapa and Ors. v. Singora and Ors.[9],
a three-Judge Bench of Supreme Court specifically dealt with an issue
concerning defects in the verification of an election petition as well as of
defects in the affidavit accompanying an election petition wherein allegations
of corrupt practice are made. It was held that even though ordinarily a
defective verification can be cured and the failure to disclose the grounds or
sources of information may not be fatal, failure to place them on record with
promptitude may lead the court in a given case to doubt the veracity of the
evidence ultimately tendered.
Hon’ble Supreme
Court held that omission to verify the pleading is also a curable
irregularity in the case
Union of India v. Shanti Gurung[10].
In this case since the
Written Statement filed on behalf of the Defendant No. 1 was without
her signatures and any verification, it was clearly defective. However, held
that the defect of signatures and verification in pleadings is
an irregularity which can be remedied, it is not fatal but is a curable defect.
Recently, The Allahabad
Hight Court delivered judgement in April, 2022 in the case
Rohit
Surfactants Private Limited v. Kanodia Salt Company Ltd[11].
Whereby the Hon’ble High Court has circumscribed defect in the verification
clause to be a clerical defect.
In this case, the mistake/defect which had occurred in the verification of
the last page of the plaint was tried to be rectified by the plaintiff within
few months of the institution of the suit by filing an application under Order
VI Rule 17,
The 18th page of the plaint
had got mutilated and it was replaced, and by sheer mistake 05.04.2010 was
typed as date of verification. Though, the plaint was ready on 30.03.2010 and
affidavit of plaint was sworn on 30.03.2010. According to
plaintiff-revisionist, as soon as the mistake was discovered, an application
for rectification thereof was moved and on 08.02.2011, the application was
allowed and amendment was duly incorporated in the plaint, which was later
recalled upon application by other party; Hence this Revision.
Sri Tarun Agrawal,
learned counsel submitted that the mistake which had occurred was not
intentional, and the last page of the plaint got mutilated and was changed, the
date of verification was wrongly transcribed as 05.04.2010. He contended that
the mistake is merely clerical and no injustice would be done to the
respondents in case, the application is allowed. According to him, such an
inadvertent clerical mistake could even be corrected by the Court exercising
power under Section 151 CPC.
Reliance had been placed on Regu Mahesh’s case and The Court opined that the
purpose, for providing amendment of pleading under Rule 17 of Order VI is not
by chance, but to provide opportunities to the parties to the pleading under
Order VI that in case, any fact had remained unpleaded or mistake occurred, the
party can rectify through an amendment. The legislature also in the year 2002
had tried to curtail the power of unnecessary amendments which were made to
delay the proceedings of the suit by inserting proviso once the trial has
commenced. It is only after the Court records its satisfaction that an
amendment can be made. It was held that the
defect in the verification clause being a clerical defect can be cured on the
application moved by the plaintiff under Order VI Rule 17 CPC.
Similarly, there are enormous recent judgments/orders of various High
Courts like High Court of Orissa[12],
High Court of Karnataka[13]
etc. and Supreme Court[14]
which address the main issue in hand i.e., whether a defective verification
is curable or not?
Also, Order VI Rule 18 deals with cases
of Failure to amend after order:
If a party who has obtained an order for leave to amend does not amend
accordingly within the time limit, then within fourteen days from the date of
order, he shall not be permitted to amend after the expiration of such limited
time as aforesaid or of such fourteen days, as the case may be, unless the time
is extended by the Court.
Final Remarks:
In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil[15],
while dealing with the amendments of pleading, held that all amendments
ought to be allowed, which satisfies two conditions,
a)
of not working
injustice to the other side, and
b)
of being
necessary for the purpose for determining the real questions in controversy
between the parties.
The Court further held that basic doctrine is, that amendment should be
refused only where the other party cannot be placed in the same position and if
the pleadings had been originally correct, but the amendment would cause him an
injury which could not be compensated in costs.
In Jai Jai Ram Manohar Lal v. National Building Material Supply Gurgaon[16],
The Apex Court held that rules of procedure are intended to be handmaid to
the administration of justice. A party cannot be refused just relief merely
because of some mistake, negligence, inadvertence or even infraction of the
rules of procedure. The Court further held that leave to amend a pleading is
always allowed, unless it is satisfied that the party was acting mala fide, or
that by his blunder, he has caused injury to his opponent which may not be
compensated for by an order of costs.
To conclude, it can be said
that the intent behind permitting amendments is to ensure that the ends of
justice are met and mere technicalities or rectifiable errors are not given
undue importance. The court has to be satisfied primarily that an application
is submitted in good faith and not to abuse the process of law, seeking an
amendment and that there is no evidence of negligence while ensuring that
permitting the amendment application, no prejudice is caused. In view of
Order VI Rule 17 and the afore discussed judgements, Defects in Verification are
a mere irregularity and are curable.
[5] supra note 3.
[6] Supra note 1.
[9] Ibid.
[11] Civil
Revision No. - 448 of 2012, Allahabad High Court
[12] Babula
Nayak And Others v. Smt. Santilata Satapathy, CMP No.495 of 2022
[13] Smt.
S. Rukmini Madegowda, v. The State Election Commission, M.F.A.No.49/2021(MPA)
[14] Saritha
S. Nair v. Hibi Eden, S.L.P.
No. No.10678 of 2020
Comments
Post a Comment