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TMI Blog2005 (11) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... t a separate vakalatnama for the appeal. - Appeal (civil) 6701 of 2005 - - - Dated:- 10-11-2005 - Ruma Pal, Dr. A. R. Lakshmanan and R. V. Raveendran, JJ. JUDGMENT 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 Pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdingly 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ..." 11. In Bihar State Electricity Board Vs. Bhowra Kankanee Collieries Ltd. [1984 (Supp.) SCC 597], this Court considered a case where the Vakalatnama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccepted 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, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence 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 amendme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inding 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 acceptanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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