High Court of Judicature at Bombay Decides Two Notices of Motion in Property Trespass Suit Alleging Defective Verification and Improper Institution of Plaint. The Court Examines Whether Plaint Filed by Constituted Attorney Without Personal Knowledge and on Unstamped Power of Attorney Should Be Rejected Under Order VII Rule 11 CPC and Maharashtra Stamp Act.

Civil suit for declaration that defendants are trespassers in suit premises, with interim applications challenging the validity of plaint verification and institution.

Defendant No.1 sought direction for plaintiff to prove that the constituted attorney verifying the plaint is acquainted with the facts; Defendant No.3 sought dismissal of suit or rejection of plaint on grounds of defective verification, unstamped power of attorney, and non-compliance with Order VI Rule 4 and Order VII Rule 11 CPC.

Defendants contended that the plaint was verified by a person without personal knowledge and the power of attorney was unstamped, thus the plaint was not duly instituted and liable to be rejected.

Whether the plaint is properly verified under Order VI Rule 15 CPC when the constituted attorney claims personal knowledge of the trespass though not present in India at the time. Whether the plaint should be rejected under Order VII Rule 11 CPC or Section 151 CPC for defective verification. Whether the power of attorney being unstamped or insufficiently stamped renders the plaint not duly instituted under Order IV Rule 1(3) CPC and the Maharashtra Stamp Act. Whether non-compliance with Order VI Rule 4 CPC regarding particulars of fraud affects the plaint.

Defendants argued that the constituted attorney, a Canadian national, was not in India at the time of the alleged trespass on 6 May 2013, thus verification of facts as true to his knowledge is false. Defendants contended that under Order IV Rule 1(3) CPC, if the plaint is not verified by a person acquainted with the facts, it is not duly instituted and should be returned or rejected. Defendant No.3 argued that the power of attorney executed abroad was unstamped or insufficiently stamped, and under the Maharashtra Stamp Act, it could not have been acted upon, rendering the plaint invalid. Defendant No.3 also argued that allegations of fraud required full particulars under Order VI Rule 4 CPC, and the plaint lacked such details, and the verification could not cure it. Plaintiff argued that the defendants' contentions were meritless and pointed to the long history of family possession of the property and that the attorney was duly authorized.

Mr Kapadia submitted that admittedly, Mr Kurdi and who is a Canadian National, was not in India at the time when the alleged incident took place. This being the position, he submitted that it can hardly be contended by Mr Kurdi that what is stated in the plaint is true to his knowledge, and therefore, the verification clause is clearly defective. if the defendants are able to show that the constituted attorney of the plaintiff and who has verified the plaint is not aware of the facts to his own knowledge as stipulated in Order VI Rule 15 of the CPC, then, by virtue of the provisions of Order IV Rule 1 sub-rule 3 of the CPC, the plaint shall not be deemed to be duly instituted. the power of attorney on the basis of which the present suit has been filed is an unstamped and/or insufficiently stamped document. Hence, on the basis of this unstamped/ insufficiently stamped power of attorney no plaint could have been instituted and taken cognizance of by this Court on the date when it was filed.

The plaintiff filed Suit No. 175 of 2014 and also took out Notice of Motion No. 313 of 2014 for interim reliefs. In 2015, Defendant No.1 filed Notice of Motion No. 528 of 2015 and Defendant No.3 filed Notice of Motion No. 534 of 2015 challenging the plaint. Both motions were heard together and are decided by this common judgment dated 6 September 2019.

• Code of Civil Procedure, 1908: Order VI Rule 15, Order VI Rule 4, Order IV Rule 1, Order VII Rule 11, Section 151
• Maharashtra Stamp Act, 1958: