Full Judgment Text
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CASE NO.:
Appeal (civil) 6701 of 2005
PETITIONER:
Uday Shankar Triyar
RESPONDENT:
Ram Kalewar Prasad Singh & Anr.
DATE OF JUDGMENT: 10/11/2005
BENCH:
Ruma Pal,Dr. A. R. Lakshmanan & R. V. Raveendran
JUDGMENT:
J U D G M E N T
[Arising out of SLP(c) No. 22578 of 2002
R.V. RAVEENDRAN J.,
Leave granted. This appeal by the landlord (plaintiff in Eviction
Suit No.2 of 1989 on the file of Munsiff, First, Samastipur, Bihar) is
against the judgment dated 28.7.2003 passed by Patna High Court in
MA No. 300/2002.
2. The appellant-plaintiff filed the said eviction suit against one
Anugraha Narayan Singh and the District Congress Committee (I),
Samastipur, (referred to as ’A.N. Singh’ and ’DCC’ respectively) on
the following three grounds : (i) that the suit premises (house) was let
out to A. N. Singh for his personal residential occupation and the said
A.N. Singh had unauthorisedly sub-let a portion of the suit premises to
DCC; (ii) that A.N. Singh had committed default in paying the rent
and electricity charges; and (iii) that the suit premises was required for
his personal use.
3. The defendants resisted the suit. They denied the allegation that
the suit premises was let out personally to A.N.Singh for his residence.
They contended that the premises was let out to A.N. Singh in his
capacity as President of DCC for being used as the office of DCC, on a
monthly rent of Rs.200/- (inclusive of electricity charges), and there
was no default in paying the rent. They also denied the claim of the
landlord that the suit premises was required for his own use.
4. The trial court decreed the suit by judgment and decree dated
6.6.1998 directing eviction and payment of arrears of rent and
electricity charges. It held that A.N. Singh took the premises on rent in
his personal capacity and not on behalf of DCC; and that a portion of
the suit premises was sub-let to DCC without the consent of the
landlord. The trial court also held that A.N. Singh had committed
default in paying the rents and electricity charges.
5. Feeling aggrieved, A.N. Singh and DCC filed Eviction Appeal
No.4 of 1998 on the file of the Additional District Judge, Samastipur
(referred to as the ’appellate court’). In the memorandum of appeal, the
second appellant DCC was shown as being represented by its ’former
President’. On an application made by the appellants, the Appellate
Court granted stay of eviction. During the pendency of the appeal, on
23.8.2000, the first appellant (A.N. Singh) died. His legal heirs did not
come on record. However, one Ram Kalewar Prasad Singh, claiming to
be the ’Working President’ of DCC, filed an application to delete the
first appellant and show DCC as the sole appellant and also to
substitute the words ’Working President’ in place of ’former President’
as the person representing DCC. The said application for substitution
was opposed by the landlord.
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6. On hearing the said application for substitution, the learned
Additional District Judge, by order dated 27.4.2002, dismissed the
appeal. He found that even though A.N.
Singh and DCC were arrayed as appellant Nos. 1 and 2 respectively,
the Vakalatnama accompanying the memorandum of appeal was signed
only by A.N. Singh and no vakalatnama had been filed on behalf of
DCC. He, therefore, rejected the request of Ram Kalewar Prasad Singh
for substitution on the following reasoning :-
"Appellant No. 1 died on 23.8.2000 and his legal heir has not
come for substitution and as such appeal has abated as against
appellant no. 1; and no appeal was filed on behalf of District
Congress Committee (I), Samastipur and present appeal on behalf
of appellant no. 2 is nullity in the eye of law and hence liable to
be dismissed. Accordingly the entire appeal is dismissed."
The said order of the appellate court was challenged by Ram Kalewar
Prasad Singh and DCC, in Misc. Appeal No.300 of 2002. A learned
Singh Judge of the Patna High Court allowed the said appeal by order
dated 28.7.2003. The High Court reasoned that the appeal against the
eviction decree had been filed both by A.N. Singh and DCC which was
a separate juristic person (described accordingly in the plaint by the
landlord); that while it was true that a former President could not
represent DCC in the appeal and DCC had not granted a vakalatnama,
neither the landlord (respondent in the said appeal) nor the Office had
raised any such objection; and that as the juristic person (DCC) was
already on record, the person entitled to represent such juristic person
ought to have been permitted to come on record, and thus rectify the
defect relating to improper representation. The High Court, therefore,
permitted DCC represented by its ’Working President’ to come on
record and pursue the appeal before the appellate court. The High
Court, however, kept open the question relating to the right of the
working President to represent DCC, to be decided in the appeal.
7. The said order of the High Court is challenged contending that
the High Court has failed to note that there was no ’appeal’ by DCC
before the District Court, in the eye of law, for two reasons. Firstly,
though DCC was arrayed as the second appellant in the memorandum
of appeal, it was shown as represented by its ’former President’, and a
former President could not represent DCC. Secondly, the
Vakalatnama in favour of the pleader was executed only by A.N. Singh
and not by DCC. It is submitted that the appeal was, therefore, in effect,
only by A.N. Singh, and as his L.Rs. did not come on record on his
death, the appeal abated. Reliance is placed on an old decision of the
Patna High Court in Sheikh Palat vs. Sarwan Sahu [1920 (55) IC
271] wherein it was held that presentation of a memorandum of appeal
by a Vakil without any authority in the shape of a Vakalatnama is not a
valid presentation.
8. On the other hand, learned counsel for the respondents submitted
that the order of the High Court did not suffer from any error. He
pointed out that DCC had been impleaded as the second defendant in
the eviction suit; that DCC was represented by its President A.N. Singh
in the suit; and that by the time the appeal against the eviction decree
was filed, A.N.Singh had ceased to be its President, but as he had
represented DCC in the suit, the appeal was filed by A.N. Singh on
behalf of himself and on behalf of DCC as its former President. It is
submitted that failure to mention in the Vakalatnama that A.N. Singh
was executing the Vakalatnama not only as the first appellant, but also
on behalf of the second appellant (DCC), was due to oversight. It is
submitted that DCC being represented in the appeal by a ’former
President’ was also a curable defect. It is contended that if either the
landlord or the office had pointed out the said defect/omission, it would
have been rectified immediately; and, therefore, the application filed by
the working President for substitution was rightly allowed by the High
Court.
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9. Two questions, therefore, arise for our consideration : (i) whether
the appeal by DCC against the eviction decree was defective or invalid
and (ii) whether such defect could be permitted to be rectified ?
10. Order 41 Rule 1 CPC requires every appeal to be preferred in the
form of a memorandum signed by the appellant or his pleader and
presented to the court or to such officer as it appoints in that behalf.
Order 3 Rule 4 CPC deals with appointment of pleaders. Relevant
portion thereof is extracted below :
"4. Appointment of pleader.\027(1) No pleader shall act for any
person in any Court, unless he has been appointed for the purpose
by such person by a document in writing signed by such person
or by his recognized agent or by some other person duly
authorized by or under a power-of-attorney to make such
appointment.
(2) Every such appointment shall be filed in Court and shall, for
the purposes of sub-rule (1), be deemed to be in force until
determined with the leave of the Court by a writing signed by the
client or the pleader, as the case may be, and filed in Court, or
until the client or the pleader dies, or until all the proceedings in
the suit are ended so far as regards the client.
[Explanation. \026 For the purposes of this sub-rule, the following
shall be deemed to be proceedings in the suit, --
(a) x x x
(b) x x x
(c) an appeal from any decree or order in the suit, ..."
11. In Bihar State Electricity Board Vs. Bhowra Kankanee
Collieries Ltd. [1984 (Supp.) SCC 597], this Court considered a case
where the Vakalatnama was not filed with the Appeal Memo. As the
defect was not removed in spite of grant of an opportunity, the High
Court dismissed the appeal as also the application for restoration. This
Court, while allowing the appeal against the said dismissal, held thus :-
"6. Undoubtedly, there is some negligence but when a substantive
matter is dismissed on the ground of failure to comply with
procedural directions, there is always some element of negligence
involved in it because a vigilant litigant would not miss
complying with procedural direction more so such a simple one
as filing Vakalatnama. The question is whether the degree of
negligence is so high as to bang the door of court to a suitor
seeking justice. In other words, should an investigation of facts
for rendering justice be peremptorily thwarted by some
procedural lacuna ?
7. It is not for a moment suggested that a party can ignore
peremptory orders of the Court for making the appeal ready for
hearing the appeal within a specified time. But having said this, it
must also be borne in mind that the procedure was devised for
doing justice and not for thwarting the same. In such a situation,
civil courts have leaned in favour of repairing the harassment,
inconvenience or damage to the other side by some order of costs.
But to take the view that failure to comply with an order for filing
Vakalatnama would result in dismissal of the appeal involving a
fairly good sum is to put such procedural requirement on a
pedestal tall enough to hinder the course of justice. We find it
difficult to be a party to this proposition. Hence we are inclined to
interfere."
12. In Shastri Yagnapurushdasji & Ors. V. Muldas Bhundardas
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Vaishya & Anr. [AIR 1966 SC 1119], this Court considered a case
where the Vakalatnama was in favour of ’X’, but the memorandum of
appeal was signed and filed by ’Y’. This Court while holding that the
High Court was justified in permitting ’X’ to sign the memorandum of
appeal, in order to remove the irregularity, observed thus :
"Technically, it may be conceded that the memorandum of appeal
presented by Mr. Daundkar suffered from the infirmity that
respondent No.1 had signed his Vakalatnama in favour of the
Government Pleader and Mr. Daundkar could not have accepted
it, though he was working in the Government Pleader’s office as
an Assistant Government Pleader. Even so, the said memo was
accepted by the office of the Registrar of the Appellate Side of
the High Court, because the Registry regarded the presentation of
the appeal to be proper; the appeal was in due course admitted
and if finally came up for hearing before the High Court. The
failure of the Registry to invite the attention of the Assistant
Government Pleader to the irregularity committed in the
presentation of the said appeal cannot be said to be irrelevant in
dealing with the validity of the contention raised by the
appellants. If the Registry had returned the appeal to Mr.
Daundkar as irregularly presented, the irregularity could have
been immediately corrected and the Government Pleader would
have signed both the memo of appeal and the Vakalatnama. It is
an elementary rule of justice that no party should suffer for the
mistake of the court or its office."
13. We may also usefully refer to the decision in Kodi Lal Vs. Ch.
Ahmad Hasan ]AIR 1945 Oudh 200], where the legal position was
stated thus : -
"The governing rule no doubt is that the counsel must be duly
authorized by his client to enable him to sign the appeal or to
present it on his behalf. ...... It is to be noticed that the
procedure, which is laid down imposes a prohibition on the
pleader to act without a valid power. It does not confer any
benefit on the opponent except perhaps on the hypothesis that the
actings of the counsel do not amount to acting in law. Where
circumstances disclose however that the omission to file a power
at the time of presentation of the appeal was accidental, it would
be inequitable to visit the penalty for the omission on the litigant
by insisting that his appeal must fail. Sub-rule (1) of R.4 of O.3
does not prohibit a Court from giving under S. 151, Civil P.C.,
retrospective validity to the act of a pleader who files a
vakalatnama subsequently. ....... Ordinarily a power must be filed
either antecedently or simultaneously with the acting but unless it
is so enjoined or any principle of law is violated or injustice is
likely to occur, a statutory rule of practice should not normally be
allowed to be used as a weapon of attack. The following dictum
of Bowen L.J., in (1884) 26 Ch. D. 700 may be here referred to
with advantage :
"The object of Courts is to decide the rights of parties and not to
punish them for mistakes which they make in the conduct of their
cases by deciding otherwise than in accordance with their rights
... Courts do not exist for the sake of discipline, but for the sake
of deciding matters in controversy."
If therefore there was an inadvertent technical violation of the
rule in consequence of a bona fide mistake, and the mistake is
subsequently remedied the defect need not necessarily be fatal."
14. In so far as the decision in Sheikh Palat (supra) relied on by the
appellant-landlord, we find that the said decision is not of much
assistance to the appellant as the decision itself clarifies that "it may not
be necessary to file a Vakalatnama with the petition of appeal, but it is
certainly necessary that there should be at the time of presentation of
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the appeal, a Vakalatnama in existence bearing the signature of the
appellant or his attorney."
15. It is, thus, now well-settled that any defect in signing the
memorandum of appeal or any defect in the authority of the person
signing the memorandum of appeal, or the omission to file the
vakalatnama executed by the appellant, along with the appeal, will not
invalidate the memorandum of appeal, if such omission or defect is not
deliberate and the signing of the Appeal memorandum or the
presentation thereof before the appellate court was with the knowledge
and authority of the appellant. Such omission or defect being one
relatable to procedure, it can subsequently be corrected. It is the duty of
the Office to verify whether the memorandum of appeal was signed by
the appellant or his authorized agent or pleader holding appropriate
vakalatnama. If the Office does not point out such defect and the appeal
is accepted and proceeded with, it cannot be rejected at the hearing of
the appeal merely by reason of such defect, without giving an
opportunity to the appellant to rectify it. The requirement that the
appeal should be signed by the appellant or his pleader (duly authorized
by a Vakalatnama executed by the appellant) is, no doubt, mandatory.
But it does not mean that non-compliance should result in automatic
rejection of the appeal without an opportunity to the appellant to rectify
the defect. If and when the defect is noticed or pointed out, the court
should, either on an application by the appellant or suo motu, permit the
appellant to rectify the defect by either signing the memorandum of
appeal or by furnishing the vakalatnama. It should also be kept in view
that if the pleader signing the memorandum of appeal has appeared for
the party in the trial court, then he need not present a fresh
Vakalatnama along with the memorandum of appeal, as the
Vakalatnama in his favour filed in the trial court will be sufficient
authority to sign and present the memorandum of appeal having regard
to Rule 4(2) of Order 3 CPC, read with Explanation [c] thereto. In such
an event, a mere memo referring to the authority given to him in the
trial court may be sufficient. However, filing a fresh Vakalatnama with
the memo of appeal will always be convenient to facilitate the
processing of the appeal by the office.
16. An analogous provision is to be found in Order 6 Rule 14 CPC
which requires that every pleading shall be signed by the party and his
pleader, if any. Here again, it has always been recognized that if a
plaint is not signed by the plaintiff or his duly authorized agent due to
any bona fide error, the defect can be permitted to be rectified either by
the trial court at any time before judgment, or even by the appellate
court by permitting appropriate amendment, when such defect comes to
its notice during hearing.
17. Non-compliance with any procedural requirement relating to a
pleading, memorandum of appeal or application or petition for relief
should not entail automatic dismissal or rejection, unless the relevant
statute or rule so mandates. Procedural defects and irregularities which
are curable should not be allowed to defeat substantive rights or to
cause injustice. Procedure, a hand-maiden to justice, should never be
made a tool to deny justice or perpetuate injustice, by any oppressive or
punitive use. The well recognized exceptions to this principle are :-
i) where the Statute prescribing the procedure, also prescribes
specifically the consequence of non-compliance.
ii) where the procedural defect is not rectified, even after it is
pointed out and due opportunity is given for rectifying it;
iii) where the non-compliance or violation is proved to be
deliberate or mischievous;
iv) where the rectification of defect would affect the case on
merits or will affect the jurisdiction of the court.
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v) in case of Memorandum of Appeal, there is complete
absence of authority and the appeal is presented without the
knowledge, consent and authority of the appellant;
18. We will now examine the facts of this case with reference to the
aforesaid principles. A.N. Singh and DCC (by its President A.N. Singh)
were the defendants in the eviction suit and they were represented in
the trial court by their counsel Shri Bindeshwar Prasad Singh and his
colleagues. The cause-title of the memorandum of appeal against the
eviction suit shows that there were two appellants - A.N. Singh and
DCC. It is evident from the subsequent application for substitution that
DCC was aware of the filing of the appeal. The memorandum of appeal
was signed by Shri Umesh Chandra Kumar, Advocate, colleague of
Shri Bindeshwar Prasad Singh. It was accompanied by a vakalatnama
executed by A.N. Singh in favour of Shri Bindeshwar Prasad Singh and
his colleagues including Shri Umesh Chandra Kumar. The office report
on examination of the memorandum of appeal did not refer to any
defect relating to absence of any vakalatnama by DCC. It is apparent
that the appellants’ counsel and the District Court office proceeded on
the basis that A.N. Singh was representing himself and the DCC as its
former President. Only when A.N. Singh died and the working
President of DCC filed an application for deletion of appellant No.1
(A.N. Singh) and for amendment of the description of appellant No.2
by substitution of the words ’Working President’ for ’Former
President" as the person representing DCC, an objection was raised
alleging improper presentation. In the circumstances, the appellate
court ought to have accepted the application for amendment and
substitution filed on behalf of DCC.
19. Another aspect requires to be noticed. When A.N. Singh ceased
to be the President, it is true that in the normal course, he could not
have represented DCC as its former President. But it was possible for
A.N. Singh to represent DCC as its former President, if there was a
resolution by DCC expressly authorizing him to represent it in the
appeal. It is also possible that in the absence of a new President, A.N.
Singh continued to act on the assumption that he was entitled to
represent DCC. As no objection was raised during the lifetime of A.N.
Singh, his explanation is not available as to why he chose to represent
DCC in the appeal, as its ’former President’. Neither the office of the
appellate court, nor the landlord-respondent having raised this issue and
the Vakalatnama signed by A.N. Singh having been received and
impliedly accepted by the appellate court as validly executed by the
appellants, the landlord’s objection to the application for substitution
ought to have been rejected by the appellate court. At all events, if the
representation was found to be defective or non-existent, the appellate
court ought to have granted an opportunity to the second appellant \026
DCC, to rectify the defect.
20. There is yet another reason to hold that the appeal by DCC
against the eviction decree was validly filed. DCC was represented by
Shri Bindeshwar Prasad Singh and his colleagues in the trial court. The
same counsel filed the appeal. The Vakalatnama granted by DCC in
favour of the said counsel in the trial court was sufficient authorization
to the said counsel to file the appeal having regard to Order 3 Rule 4(2)
CPC read with Explanation [c], even without a separate vakalatnama
for the appeal.
21. We may at this juncture digress and express our concern in
regard to the manner in which defective Vakalatnamas are routinely
filed in courts. Vakalatnama, a species of Power of Attorney, is an
important document, which enables and authorizes the pleader
appearing for a litigant to do several acts as an Agent, which are
binding on the litigant who is the principal. It is a document which
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creates the special relationship between the lawyer and the client. It
regulates and governs the extent of delegation of authority to the
pleader and the terms and conditions governing such delegation. It
should, therefore, be properly filled/attested/accepted with care and
caution. Obtaining the signature of the litigant on blank Vakalatnamas
and filling them subsequently should be avoided. We may take judicial
notice of the following defects routinely found in Vakalatnamas filed in
courts :-
(a) Failure to mention the name/s of the person/s executing
the Vakalatnama, and leaving the relevant column blank;
(b) Failure to disclose the name, designation or authority of
the person executing the Vakalatnama on behalf of the
grantor (where the Vakalatnama is signed on behalf of a
company, society or body) by either affixing a seal or by
mentioning the name and designation below the signature
of the executant (and failure to annex a copy of such
authority with the Vakalatnama).
(c) Failure on the part of the pleader in whose favour the
Vakalatnama is executed, to sign it in token of its
acceptance.
(d) Failure to identify the person executing the Vakalatnama
or failure to certify that the pleader has satisfied himself
about the due execution of the Vakalatnama.
(e) Failure to mention the address of the pleader for purpose
of service (in particular in cases of outstation counsel).
(f) Where the Vakalatnama is executed by someone for self
and on behalf of someone else, failure to mention the fact
that it is being so executed. For example, when a father
and the minor children are parties, invariably there is a
single signature of the father alone in the Vakalatnama
without any endorsement/statement that the signature is
for ’self and as guardian of his minor children’. Similarly,
where a firm and its partner, or a company and its
Director, or a Trust and its trustee, or an organisation and
its office-bearer, execute a Vakalatnama, invariably there
will be only one signature without even an endorsement
that the signature is both in his/her personal capacity and
as the person authorized to sign on behalf of the corporate
body/firm/ society/organisation.
(g) Where the Vakalatnama is executed by a power-of-
attorney holder of a party, failure to disclose that it is
being executed by an Attorney-holder and failure to annex
a copy of the power of attorney;
(h) Where several persons sign a single vakalatnama, failure
to affix the signatures seriatim, without mentioning their
serial numbers or names in brackets. (Many a time it is not
possible to know who have signed the Vakalatnama where
the signatures are illegible scrawls);
(i) Pleaders engaged by a client, in turn, executing
vakalatnamas in favour of other pleaders for appearing in
the same matter or for filing an appeal or revision. (It is
not uncommon in some areas for mofussil lawyers to
obtain signature of a litigant on a vakalatnama and come
to the seat of the High Court, and engage a pleader for
appearance in a higher court and execute a Vakalatnama
in favour of such pleader).
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We have referred to the above routine defects, as Registries/ Offices do
not verify the Vakalatnamas with the care and caution they deserve.
Such failure many a time leads to avoidable complications at later
stages, as in the present case. The need to issue appropriate instructions
to the Registries/Offices to properly check and verify the Vakalatnamas
filed requires emphasis. Be that as it may.
22. Coming back, we find that the High Court was justified in setting
aside the dismissal and restoring the first appeal to the file of the
Additional District Judge with a direction to decide the matter on
merits. We, therefore, dismiss this appeal.
Nothing stated above or by the High Court, shall be construed as an
expression of any view or opinion on the merits.