1993 (1) TMI 245 - HC - Benami Property

Summary

Issues Involved:
1. Whether the names of plaintiffs Nos. 1 and 2 are liable to be struck out and/or deleted from the cause title of the plaint under the provisions of Order 1, rule 10 of the Code of Civil Procedure, 1908.
2. Whether the portions of the pleadings in the plaint as more particularly set out in the schedule to the chamber summons are liable to be struck out under the provisions of Order 6, rule 16 of the Code of Civil Procedure, 1908.
3. Whether the plaint filed has been properly and validly signed on behalf of plaintiffs Nos. 1 and 2. If not, the effect thereof.
4. Whether the plaint filed has been properly and validly verified. If not, the effect thereof.

Summary:

Issue 1: Striking Out Names of Plaintiffs Nos. 1 and 2
The court considered whether plaintiffs Nos. 1 and 2, not being shareholders of the seventh defendant company, had the locus standi to file and maintain the suit. The court held that under Indian company law, only a person whose name is on the register of members of the company is considered a shareholder/member. Since plaintiffs Nos. 1 and 2 were not on the register, they had no right to the reliefs claimed in the suit and their names were struck out from the cause title under Order 1, rule 10(2) of the Civil Procedure Code, 1908.

Issue 2: Striking Out Portions of the Pleadings
The court examined whether certain portions of the pleadings were unnecessary, scandalous, frivolous, or vexatious under Order 6, rule 16 of the Civil Procedure Code, 1908. The court found that several statements in the plaint did not constitute the cause of action for the reliefs claimed and were irrelevant, unnecessary, and prejudicial. These portions were ordered to be struck out from the plaint.

Issue 3: Validity of Signing the Plaint
The court addressed whether the plaint was properly signed by the said R.A. Shah on behalf of plaintiffs Nos. 1 and 2. It was held that an advocate cannot act in a dual capacity as both an advocate and a constituted attorney. Since the vakalatnama and the plaint were signed by R.A. Shah, who also appeared as an advocate for the plaintiffs, the court found that the plaint was not properly signed.

Issue 4: Validity of Verification
The court considered whether the plaint was properly verified. It was found that the verification did not comply with the provisions of Order 6, rule 15 of the Civil Procedure Code, 1908. The court allowed the plaintiffs an opportunity to reverify the plaint in accordance with the law within two weeks, failing which the plaint would be returned as defective.

Conclusion:
The chamber summons was made absolute in terms of prayers (a) and (c). Plaintiffs were granted liberty to cure the defects by reverifying the plaint within two weeks, failing which the plaint would be returned as defective. There was no order as to costs of the chamber summons, and the application for a stay of operation of the order was rejected.