Civil Procedure Code, 1908 – Section 26(2) and Order 6 Rue 15 (4) – Affidavit – Any defect in the affidavit filed along with the plaint is only a curable defect and an opportunity can be given to the plaintiff to cure the same by filing an additional affidavit explaining the defect in the affidavit but he is not entitled to brush aside that affidavit.
Civil Procedure Code, 1908 – Section 26(2) and Order 6 Rue 15 (4) – Affidavit – Mere filing an additional affidavit stating that it was filed in his individual capacity and not in the capacity of the Chairman or Managing Director of the Company will not said to be an affidavit contrary to the pleadings.
Civil Procedure Code, 1908 – Section 26(2) and Order 6 Rue 15 (4) – Affidavit – If there are inconsistent affidavits, then effect of such thing has to be considered by the court.
Civil Procedure Code, 1908 – Section 26(2) and Order 6 Rue 15 (4) – Affidavit – Affidavit filed along with the plaint as part of the verification cannot be used for the purpose of evidence at the time of trial and party has to file a proof affidavit in support of his pleadings in lieu of chief examination at the time of trial.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. RAMAKRISHNAN, J.
O.P. (Civil) No.2148 of 2016
Dated this the 8 th day of September, 2016
O.S.366/2012 OF SUB COURT, KOZHIKODE
V.P. ABDUL KAREEM, KOZHIKODE.
BY ADV. SRI.C.P.MOHAMMED NIAS
MEHROOF MANALODY, CHAIRMAN AND M.D, M/S.GLOSOFT TECHNOLOGIES PRIVATE LIMITED, INDUS AVENUE, KALLAI- 673 003.
BY ADV. SRI.P.B.KRISHNAN
The petitioner in this petition challenging the order passed by the 3 rd 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 3 rd Additional Sub Court, Kozhikode for realisation of ₹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 O.P.(C).No.2148 of 2016 3 permitted to file an additional affidavit in addition to the affidavit which has already been filed in 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 affidavit he wanted to mention that the seal of the company was by mistakenly used at the time of filing the suit and described him as the chairman and managing director of the company so as to make it appear that the suit was filed for and on behalf of the company is a typographical mistake, inadvertently crept in while preparing the affidavit and plaint. The petition for amendment to delete the seal affixed as I.A.1264/2015 was dismissed by the court below. Without amending the plaint, filing an additional affidavit, contradictory to the pleading is not contemplated and that will go to the root of the plaint. So the court below should not have allowed the application which has caused prejudice to the petitioner. According to learned counsel, the court below had not rightly understood the dictum laid down in the decision reported in