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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.