PRINCE LINE LTD Vs. TRUSTEES OF THE PORT OF BOMBAY

JUDGEMENT

(1.) AFTER stating the facts His Lordship proceeded. ] This being the position, it remains to be determined how far the defendants or one or more of them are liable to the plaintiffs on the two counts, namely, negligence and breach of duty which are charged against them in the plaint. Before, however, I come to determine the question of their liability to the plaintiffs, I shall first of all deal with the point of limitation which has been urged by the defendants. The point of limitation arises in this way. As noted before the suit came to be filed by the plaintiffs on 19th November 1948, under a special power-of-attorney executed by the plaintiffs in favour of Messrs. Turner Morrison & Co. , Ltd. The suit as filed was well within six months of the accrual of the cause of the action, viz. , the damage by the fire on 25th May 1943, within the meaning of Section 87, Bombay Port Trust Act, and if the suit had been held to be properly filed on 19th November 1943, there was nothing more to do. Chagla J. however, held on 15th July 1947, that that power-of-attorney being a special power-of-attorney was of no avail and that the suit was not properly instituted, the plaint having been signed and declared by Messrs. Turner Morrison & Co. . Ltd. , who held only a special power-of-attorney from the plaintiffs. He adjourned the suit to enable the plaintiffs to grant a general power-of-attorney to their constituted attorneys and to enable the latter to properly sign and verify the plaint and the re-signing and redeclaration of the plaint were made on 22nd August 1947, after the requisite general power-of-attorney had been granted and executed by the plaintiffs. The question that has been agitated before me is that it was only on 22nd August 1947 that the suit can be said to have been filed, and if the suit can be said to have been filed only on 22nd August 1947, the same would be barred by limitation not only under Section 87, Bombay Port Trust Act as having been more than six months from the accrual of the cause of action, but also under Article 36, Limitation Act, which prescribes two years period of limitation in respect of all suits which are filed in respect of malfeasance, misfeasance and nonfeasance, i. e. , in respect of all actions on torts in general.

(2.) IT therefore lies to be determined as to whether the suit could be said to have been filed only on the resigning and redeclaration of the plaint on 22nd August 1947. IT was contended on behalf of the plaintiffs that the signing and declaration of the plaint in accordance with the provisions of Order 6, Rule 14 and Order 6, Rule 15, Civil P. C. , are merely formal acts and mere matters of procedure. A pleading which is not signed by the plaintiff or by a person duly authorised by him in that behalf can be allowed to be re-signed and redeclared if the defect is discovered in time before the judgment and even before the appellate Court if the defect is not discovered till then, and this can be allowed to be done by the Court even after the expiry of the period of limitation. Reliance was placed in this behalf on the commentaries of Sir Dinshah Mulla under Order 6, Rule 15, Civil P. C. , at pp. 687 and 688 of Edn. 11 of Sir Dinshah Mulla's Civil Procedure Code. My attention was also drawn to several authorities of this Court as well as the other High Courts in this behalf. A decision of their Lordships of the Privy Council in Mohini Mohun Das v. Bungsi Buddan Saha, 17 cal. 580, was relied upon for the purpose of showing that there was no rule that a person named as a co-plaintiff was not to be treated as a plaintiff unless he signed and verified the plaint and that though one of the three joint-creditors, who had been named as plaintiffs in the suit, had signed and verified the plaint and others had not, the suit was held not to be defective for want of parties when it was filed. IT may be observed that this decision of their Lordships of the Privy Council was reached in a case where the joint-creditors who did not sign and verify the plaint had in fact authorised their co-plaintiff to institute the suit on their behalf and the suit as filed was not bad at least so far as the plaintiff signing and verifying the plaint was concerned. No doubt the other co-plaintiffs of his should also have signed and verified the plaint along with him. Their Lord-ships, however, held that in so far as one of the plaintiffs had properly signed and verified the plaint and there was no rule that a person named as a co-plaintiff was not to be treated as a plaintiff unless he signed and verified the "plaint there was no bar to the suit being treated as an effective suit from the very inception. The case before their Lordships was not that of a plaint which was neither signed nor verified by any person acting on his own or duly authorised in that behalf. The next case relied upon by the plaintiffs was Wali Muhammad Khan v. Ishaq Alt Khan, 54 ALL. 57 : (A. I. R. (18) 1931 ALL. 507, a decision of the Full Bench of the Allahabad High Court. There a suit was filed in the name of the plaintiff by his mother acting as guardian and next friend and describing him as a minor, while in fact he was of age. IT was found that the suit had been authorised by him and that it was prosecuted by him in person and the learned Judges observed at p. 62 that there was no rule which in express terms required that the plaintiffs should file the plaint personally, nor was there any rule which expressly said that it should be filed by a person holding a general power-of-attorney on behalf of the plaintiff, or otherwise duly authorised by the latter. As there was no specific rule either requiring or expressly authorising the plaintiff to present the plaint, it was doubtful whether Order 3, Rule 1, Civil P. C. , would apply to such a case. If it did not apply, the presentation by a person orally authorised to do so would be valid. Even if it did apply they were clearly of the opinion that the omission to comply with that provision would be a mere irregularity and not an absence of jurisdiction. They further observed that the presentation of a plaint under such circumstances would be irregular and the Court would then have the discretion to allow the irregularity to be cured or not. If the plaintiff had acted in good faith and without gross negligence and it was fair and just to allow the defect to be cured, the Court would undoubtedly do so. Under the circumstances they, therefore, held that the defect could be allowed to be cured by the plaintiff signing and verifying the plaint himself after striking out the description of his as a minor by his guardian and next friend his mother. IT may be observed that in this case also, the Court reached the conclusion that the suit had been in fact properly filed and it was a matter of merely curing the irregularity which, having the jurisdiction to entertain the suit, the Court had the power to do under proper circumstances. This case really, therefore, is an authority for the proposition that in proper cases the Court has always got the jurisdiction in the exercise of its discretion and in the interests of justice to allow the amendment to be made or the defect to be cured when in fact the suit was filed with authority and was otherwise properly instituted.

(3.) THE result, therefore, in my opinion, would be that the present suit can be said to have been instituted only on the resigning and redeclaration of the plaint on 22nd August 1947, and that being so it was clearly out of time, having regard to both the provisions of Section 87, Bombay Port Trust Act and Article 36, Limitation Act.