Curable procedural defect in plaint filing does not make suit non est; institution relates back once affidavit omission is cured.

A plaint filed on the Original Side of the Calcutta High Court after the amended procedural regime was held to require compliance with affidavit support and verification requirements, but the omission was procedural and did not invalidate institution at the outset. The defect was curable, did not affect jurisdiction, and could not render the suit non est. Once cured, the plaint was treated as instituted from the original date of presentation, as procedure was to facilitate, not defeat, substantive adjudication.

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Issues: (i) Whether a plaint filed on the Original Side of the Calcutta High Court after the amendment of the Code of Civil Procedure had to be accompanied by an affidavit in support of the pleadings in order to be duly instituted; (ii) whether omission to file such affidavit rendered the suit non est and prevented the defect from relating back to the date of presentation of the plaint.

Issue (i): Whether a plaint filed on the Original Side of the Calcutta High Court after the amendment of the Code of Civil Procedure had to be accompanied by an affidavit in support of the pleadings in order to be duly instituted.

Analysis: The Original Side Rules required a plaint to conform to the provisions relating to pleadings and contents of plaints under the Code, and the amended provisions relating to institution of suits and verification of pleadings had to be read harmoniously with those rules. The requirement of an affidavit was procedural in character and was intended to further the administration of justice and reduce delay. Procedural enactments of this nature were not to be construed in a rigid manner so as to defeat substantive adjudication.

Conclusion: The amended procedural requirements were attracted, but non-compliance at the initial stage did not invalidate the plaint.

Issue (ii): Whether omission to file such affidavit rendered the suit non est and prevented the defect from relating back to the date of presentation of the plaint.

Analysis: The defect was curable and did not go to the root of the court's jurisdiction. The expression that a plaint shall not be deemed to be duly instituted had to be read in the procedural context, and once the omission was cured, the filing could not be treated as non-existent from the outset. The approach adopted by the High Court was too technical and inconsistent with the settled principle that procedure is a handmaid of justice. Accordingly, the institution of the plaint related back to the date of original presentation.

Conclusion: The suit was not non est, and the plaint was deemed to have been instituted on the original date of filing.

Final Conclusion: The appeal succeeded, the impugned order was set aside, the interim injunction stood revived, and the matter was sent back for reconsideration of the appeal on merits.

Ratio Decidendi: Procedural requirements governing institution and verification of plaints are directory where their breach does not affect jurisdiction, and a curable defect in filing does not render the suit non est or prevent the filing from relating back once cured.

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