Shankar Triyar Vs. Ram Kalewar Prasad Singh & Anr  Insc 637 (10 November
Ruma Pal,Dr. A. R. Lakshmanan & R. V. Raveendran [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
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.
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.(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. 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, ..." 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 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
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." 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
"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 the
appeal, a Vakalatnama in existence bearing the signature of the appellant or
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,
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
iv) where the rectification of defect would affect the case on merits or
will affect the jurisdiction of the court.
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
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 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 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
(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/
(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).
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.