1988 PLP 771 (MLD)

Raja Muhammad Muzaffar Awan, Muhammad Hanif and Sh. Muhammad Siddiq for Appellants. Ch. Muhammad Ismail for Respondents. Date of hearing: 9th June, 1984. The appellants predecessor‑in‑interest, namely, Taleh Mand, who died during the pendency of this litigation, sued the respondents for possession of the land in dispute through exercise of right of pre- emption. The latter contested the suit, inter alia on the ground that the plaint did not bear the plaintiff's thumb‑impression and that the suit was not filed by him. This controversy is reflected in issues No.7 and 7‑A.

2. Before the trial Court, the deceased took up the stand that the, plaint, Vakalatnama, the deed of power of attorney, executed in favour of his son, namely, Ilyas and the court‑fee stamp were thumb‑marked by him. The learned trial Court on consideration of the evidence, on the record, including the evidence of the handwriting expert, found that the documents in question did not bear his thumb‑impressions. Thus, despite the trial Court's finding on other material issues, being in favour of the pre‑emptor, the suit was dismissed on 20‑2‑1976.

3. The deceased‑plaintiff then went in appeal and before the learned Additional District Judge, he virtually conceded that the thumb impressions in question were not marked by him. He however, on the authority of Malik Sajawal Khan v. The Deputy Commissioner, Sargodha and another P L D 1968 Lah. 527 raised the plea that under Order VI, rule 14, C.P.C., mere non‑signing of the plaint was not fatal to the maintainability of the suit and with the permission of the Court, the plaint and Vakalatnama could be signed/ thumb‑marked even at a subsequent stage.

4. The learned Additional District Judge, however, took the view that the right of pre‑emption claimed by the pre‑emptor is a predatory in nature; the deceased did not come to the Court with clean hands; his stand that he thumb‑marked the plaint, was falsified; the fact that the plaint and Vakalatnama were proved to have been thumb‑ marked by some other person, was not such an irregularity which could be permitted to be cured under Order VI, rule 14, C.P.C. He, therefore, without discussing the trial Court's findings on other issues, upheld its verdict 'on issues Nos.7 and 7‑A. Resultantly the appeal was dismissed. The validity of the learned first appellate Court's judgment and decree dated 7‑10‑1979 is under challenge in this second appeal.

5. The learned counsel for the parties have been heard and the record perused. On behalf of the appellants the arguments advanced by him before the learned first appellate Court have been reiterated. It has been urged that the appellants all along prosecuted the suit diligently and even if the plaint was not signed or thumb‑marked by him; it was not rendered incompetent. He heavily relied upon Sajawal Khan's case, to contend that non‑signing of the plaint, was, merely an irregularity which could be cured subsequently by signing the same.

6. The learned counsel for the respondents did not dispute the correctness of the proposition that the suit cannot be thrown away, for, mere non‑signing of the plaint, and the defect is remediable. He however, urged that it is not a case of non‑signing of the plaint as it bore the thumb‑impression of someone else but before the learned trial Court the appellant falsely claimed the same, having been marked by him. It was only when his stand, was, falsified that he shifted the ground. In the circumstances of the case, the learned counsel, went on urge, the appellant was not entitled to any indulgence.

7. It is the requirement of Order VI, rule 14, C .P . C . that every pleadings should be signed by the parties and his counsel if any, there is abundant authority for the view, that non‑signing of the plaint and the Vakalatnama, under Order VI, rule 14, C.P.C., is only a procedural irregularity and not an illegality. Reference in this connection may be made to Ismail v. Mst. Razia Begum 1981 S C M R 687, Alamgir v. Nasir Ali 1981 C L C 375 and Muhammad Shafi Shaikh v. Ghulam Muhammad 1980 C L C 1150. In the Lahore authority relied upon by the appellants' learned counsel, the petition was not signed by the petitioner but by his attorney who was not a duly constituted agent, but the objection was not considered as fatal to the case. In Wali Muhammad Khan v. Ishak Ali Khan A I R 1931 All. 507, the mother acted as guardian for her son, signed the plaint and the Vakalatnama and instituted the suit. However, later on it was discovered that the plaintiff was not a minor. But the Court allowed the irregularity to be cured.

8. The impugned judgment shows that the learned Additional District Judge was not unaware that the defect as to the non‑signing of the plaint, is, not fatal, to the maintainabililty of the suit and can be allowed to be removed. He, however, vainly endeavoured to distinguish the Lahore ruling on the ground that this precedent or for that matter the other authorities laying down the proposition aforesaid, did not relate to pre‑emption suit. The distinction drawn by the learned Additional District Judge is wholly irrelevant. There is no law that in the matter of pleadings, a different yardstick should be applied to the suits, in which right of pre‑emption is sought to be enforced. It is discernible from the record that the deceased has been vigorously pursuing the suit and in his zeal to ratify its institution, he owned, the thumb‑impressions in question. I do not think that for this reason alone the benefit of the case‑law ' on the subject, ordaining that non‑signing of the plaint is a curable irregularity, can be denied to the appellants. Practically, the result of thumb‑marking of the plaint and Vakalatnama by someone else and the non‑sighing thereof by the deceased, is the same.

9. For the foregoing reasons this appeal is accepted and the judgment and decree of the learned first appellate Court are set aside. The suit is remanded to the learned trial Court, with the direction to allow the appellants to put their signatures/thumb‑impressions on the plaint and the Vakalatama and re‑decide the suit after recording fresh findings on issues Nos.7 and 7‑A. The learned trial Court may not disturb its findings on other issues but these shall not be considered to have been confirmed by this Court. The parties are left to bear their own costs. M.Y.H. Appeal accepted.