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TMI Blog1975 (2) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... een made in accordance with law and is a nullity and relied upon the Bench decision of this Court in Nandamani Ananga Bhima Deo v. Madana Mohana Deo, ILR (1937) Mad 320: AIR 1937 Mad 239) (A). The learned District Munsiff upheld the plea of the respondent and dismissed the E.P. There was an appeal therefrom to the learned District Judge of Kurnool and he set aside the order of dismissal and remanded the petition for fresh disposal in the light of the following observations: "The decision of his Lordship Justice Krishnaswami Nayudu in Narappa v. Subbarayudu, 1950-2 Mad LJ 256: (AIR 1951 Mad 340) (B) had not been published in the reports when the learned District Munsif, pronounced the judgment under appeal. Under that decision, two questions of fact have to be considered by the District Munsif. The first is whether Sri P. Viswanatha Rao was authorised to represent the decree-holder, on the date on which the execution petition was presented. The second is, whether, if he was so authorised, his failure or neglect to obtain a vakalat from the decree-holder and present the vakalat along with the execution petition was due to a bona fide mistake. If both these questions are answer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in vakalats filed in Court. This is not a case of any defects in particulars in any document. It is a case simply of want of authority on the part of the pleader to act. Order 3, R. 4, says that no pleader shall act unless he has been appointed by a document in writing. This means in our opinion that if the pleader has not been appointed by a document in writing, he is wanting in capacity or competence to act. It is not a question of a defect in the pleader's authority; it is not a question of an irregularity or even of an illegality in anything that he does; it is simply a question of want of capacity to act. If a pleader purports to do something which he has no power or capacity to do, we think it must be clear that what he purports to do can have no legal effect." 4. In 1950-2 Mad LJ 256: (AIR 1951 Mad 340) (B), the facts were E.P. 36G of 1944 filed just a day previous to the expiry of the 12 years period from the date of the final decree was signed and verified by the deceased decree-holder Lingasubbayya's sons and also counter-signed by one Mr. C.S. Narasimhachariar as vakil for the decree-holder. Mr. Narasimhachariar had no vakalat for Lingasubbayya's sons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court in ILR (1937) Mad 320: (AIR 1937 Mad 239) (A). 6. That powerful reasons existed to invite one to come to a conclusion in a sense of opposite to the above said Bench decision of this Court, will be evident from an examination of the cases referred to by Krishnaswami Nayudu, J., and other cases. 7. In the Full Bench decision ILR 54 All 57: (AIR 1931 All 507) (D), the learned Judges had to decide whether the absence of the presentation of the plaint by the plaintiff or by some person duly authorised by him would altogether oust the jurisdiction of the Court and they held as follows: "As there is no specific rule either requiring or expressly authorising the plaintiff to present the plaint, it is doubtful whether O. 3, R. 1 of the Code would apply to such a case. If it does not apply, the presentation by a person orally authorised to do so would be valid. But even, if it does were clearly of opinion that the omission to comply with this provision would be a mere irregularity and not an absence of jurisdiction. The Court receiving a plaint which has not been properly presented would have jurisdiction to dismiss it and pass orders on it. It would not be acting withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; merely because; it has been handed over to the officer of the Court by a pleader who has not got a vakalatnama from the decree-holder." 10. Therefore, at present, we have two conflicting decisions of this Court: on the point in controversy, viz., a Bench decision and the decision of Krishnaswami Nayudu, J. The latter decision being that of a single Judge, the Bench decision has got to be followed until the matter is further considered by another Bench or a Full Bench. 11. The subsequent decisions of other High Courts preferred by Krishnaswami Nayudu, J., make it desirable that the Bench decision of this Court should be reconsidered. 12. In any event, the conflict between the Bench decision and the decision of Krishnaswami Nayudu, J. should be resolved. 13. The question that has to be decided is whether an application for execution which is in all other respects in order is not to be considered to be valid act, merely because it was presented by a pleader who had not got a vakalatnama from the decree-holder. 14. These papers are directed to be placed before the learned Chief Justice for the matter being posted before a Bench or a Full Bench as my Lord the Chief Justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion raised turns upon an interpretation of the following provisions of the Civil Procedure Code: "Order 3, R. 1--Any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent or by a pleader appearing, applying or acting, as the case may be, on his behalf. Rule 4(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 subscribed with his signature in his own hand by such person or by his recognised agent or by some other person duly authorised by or under a power-of-attorney to make such appointment." 20. A comparative study of these two provisions shows that while in R. 1 a pleader can appear, apply or act on behalf of his client, in R. 4 he is precluded from acting unless he is authorised by a document in writing signed by such person. It can be argued that the use of the words 'applying or acting' in R. 1 indicate that applying is taken away out of the comprehensiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified as prescribed by R. 11(2) of O. 21, Civil P.C. by the decree-holder and as such it was an application in accordance with law so far as the form of the application was concerned. It was presented in Court by Mr. P. Viswanatha Rao, a pleader but at that time he had no vakalat from the decree-holder. On the 3rd January, 1950, the execution petition was returned by Court for rectification of certain defects. No objection was, however, taken by Court that the execution petition was filed by a pleader who had no vakalat from the decree-holder. It was represented on the 10th January, 1950. Thereafter it was admitted and numbered as E. P. No. 15 of 1950; and on the 16th January, 1950, the Court directed notice of the application to the judgment-debtor. On the 3rd March, 1950, the judgment-debtor filed a counter wherein he raised the objection that there was no proper presentation of the execution petition inasmuch as the pleader who filed the petition had no vakalat on the date on which it was filed in Court. On the 6th March, 1950, the respondent gave a vakalat in favour of the pleader and it was filed in Court on the 8th March, 1950. The execution petition was dismissed by the Dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the mere drawing up of an application in proper form is not sufficient and something more has to be done. The application has to be presented to the Court or to the officer appointed in this behalf by the party or his authorised agent. It can also be presented by a pleader appearing, applying or acting on his behalf. This is provided by O. 3, R. 1, which is in these terms: "Any appearance, application or act in or to any Court, required or authorised by law, to be made or done by a party in such Court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent or by a pleader appearing, applying, acting, as the case may be, on his behalf; Provided that any such appearance shall, if the Court so directs, be made by the party in person." 28. It is to be noted that the words 'appearing, applying, acting', as the case may be, in R. 1 were substituted for the words 'duly appointed to act' which occurred in the original rule by the Code of Civil Procedure (Second Amendment) Act, 1926. The other relevant rule is it. 4 of O. 3 and it is in the following words: &q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng his argument on the provisions contained in O. 3, the learned counsel for the appellant has contended that inasmuch as the pleader who made the application for execution had not been appointed fey means of a vakalat, there was want of authority on the part of the pleader to 'act' within the meaning of O. 3, R. 4 and hence the presentation of the execution application, dated the 7th December, 1949, was no presentation at all in the eye of law and was a mere nullity and therefore such an application was not one 'made in accordance with law'. 32. The contentions urged on behalf of the respondent may be summarised thus. An application for execution is not required by law to be presented by a party in person. Hence the mere fact that it was presented by a pleader who had not been duly appointed by a vakalat, could not render it invalid. The use of the words 'appearing, applying, acting', in R. 1 indicates that 'applying' is taken out of the comprehensive meaning attributable to the word 'acting' and therefore a pleader can apply even though he is not authorised by R. 4, if he is otherwise expressly or impliedly authorised to do so. Even otherw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, In the matter of, ILR 4 Rang 249: (AIR 1926 Rang 215 (J). The learned Judges pointed out that amendment was the result of the Bar Committee's Reports which contained the following remarks: "We therefore propose that all practitioners shall be required to file vakalatnama, when they act, but that when they merely appear and plead they shall be allowed the option of filing a memorandum of appearance, signed by them, giving the names of the parties in the case, the name of the party for whom they appear, and the name of the person who authorised them to appear. We would not however, apply this rule, but would maintain the existing practice in the case of an advocate who under the rules in force can only appear on the Original Side of the Calcutta, Bombay and Madras High Courts on the instructions of an Attorney." 36. The decision was distinguished in a later ruling of the Rangoon High Court in Sawarmal v. Kunjilal, AIR 1939 Rang 1 (K). At page 6 it was observed thus: ".........when a plaint or memorandum of appeal has been drawn up and signed by a pleader duly authorised under O. 3, R. 4, there is nothing contrary to the provisions, or the intention, or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r manner as may be prescribed; and O. 4, R. 1, provides that every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in that behalf. It is no doubt true that there is no mention in S. 26 or O. 4, R. 1 as to who is to present the plaint; but when it is remembered that the presentation of the plaint is necessary for the institution of a suit, it is necessarily implied that it must be presented by the plaintiff personally or by some person duly authorised by him. It could not have been intended by the Code that the proceeding by way of suit should be initiated by a stranger. If the provisions contained in S. 26 of the Code and O. 4, R. 1, necessarily imply that the plaintiff should present the plaint personally or through some person duly authorised by him, it is incomprehensible how it can be said that the plaint is a document not required by law to be presented by a party. The same is the case with the preferring of an appeal. Order 41, R. 1, Civil P.C., provides that every appeal shall 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 this behalf. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore do so unless he is authorised in writing as provided by R. 4. A comparative study of R. 1, and R. 4, shows that while in R. 1 a pleader can appear, apply or act on behalf of his client, he is precluded under R. 4 from 'acting' unless he is authorised by a document in writing signed by such person. It has been argued that while in R. 1 a clear distinction has been made between appearance, application and act, in R. 4 it is with regard to 'acting' alone that a document in writing is made obligatory. To 'act' for a client in Court is to take on his behalf in the Court, or in the offices of the Court, the necessary steps that must be taken in the course of the litigation in order that his case may be properly laid before the Court. Thus 'acting' includes 'applying' so that a pleader who makes an application on behalf of a litigant acts for him and cannot do so unless he is authorised in writing under R. 4, of O. 3. This is the view taken by a Division Bench of the Lahore High Court consisting of Addison and Din Mohammad, JJ., in Bashir Ahmed v. Mary Minck, AIR 1938 Lah 698 (L), at p. 700 it was observed: "It is true that, while R. 1 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with regard to 'applying', with the result that R. 4 is silent on the point of 'applying'. It is therefore not unreasonable to assume that the Legislature thought that 'applying' was (included in 'acting', and that is the reason why it made no separate provision with regard to 'applying'. It may therefore be held that 'applying' is included in the meaning of the word 'acting' and a pleader who files an application on behalf of a party 'acts' for him and cannot therefore do so unless he is duly authorised in that behalf. It follows that unless a pleader is duly authorised in that behalf, he cannot 'act' for a party in Court, in the sense that he cannot present an application on his behalf. 43. But the question still remains as to whether the non-compliance with the provisions of R. 4 makes the 'act' of a pleader in presenting the application without being duly authorised in that behalf, a nullity or whether it is only an irregularity which could be subsequently rectified. Where a pleader is duly authorised by a vakalat but docs not file the vakalat along with the application for execution, there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all other respects was in order and which had been admitted and registered by the executing Court was not to be considered to have not been made in accordance with law merely because it had been handed over to the officer of the Court by a pleader who had not got a vakalatnama from the decree-holder. 47. The first of the decisions of the Madras High Court which considered this question is Modono Mahono v. Kunja Behari, AIR 1935 Mad 786 (N), where King, J., took the view that such an application was a mere nullity and was not made in accordance with law. This decision was taken in a Letters Patent Appeal and in ILR (1937) Mad 320: (AIR 1937 Mad 239) (A), a Division Bench of the Madras High Court consisting of Burn and Menon, JJ., held that an execution application presented by a pleader not duly authorised in writing in that behalf could not be said to be valid presentation inasmuch as the 'act' of the pleader in presenting the execution application was a mere nullity and therefore no order could be passed on the execution application which was not validly presented. The same view was taken by Horwill, J., in Appaji Chetti v. Govinda Sami Reddi, AIR. 1937 Mad 760 (O). 48. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by limitation. 51. Dealing with the presentation of plaints, there are two decisions of the Allahabad High Court. In ILR 54 All 57: (AIR 1931 All 50) (FB) (D), the plaint was filed through the next friend of the plaintiff who was shown as a minor. It was eventually discovered that he plaintiff was not a minor but had been prosecuting the suit himself, and an objection raised as to the framing of the suit was overruled by the trial Court. The High Court held that the plaintiffs suit should not necessarily be thrown out on the technical ground that the plaint as originally filed described him as a minor under the guardianship of his mother and that the defect could and should be cured as it was due to a bona fide mistake. The learned Judges observed: "The Court receiving a plaint which has not been properly presented would have jurisdiction to dismiss it and pass orders on it. It would not be acting without jurisdiction if it did so. We do not mean to imply that that a plaintiff has the right to get his plaint presented by a man in the street. If the person presenting it was not properly authorised, the presentation would be irregular, the Court would then have the discret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00 (R), the question for determination was whether the absence of authority could be cured by a duly executed power filed alter the expiry of the limitation provided by law for appeals. It was found that the appeal was filed by the advocate with the knowledge and on instructions from his client but it suffered from a procedural defect under a bona fide though mistaken, belief that the necessary power already existed, and the defect was remedied as soon as the mistake had been brought to the notice of the advocate concerned. It was held that it was a mere procedural irregularity arising from a bona fide mistake on the part of the pleader and was not so vital as to render the appeal incompetent. 55. In All India Barai Mahasabha v. Fangi Lal Chaurasia, AIR 1941 Oudh 169 (S), an application was filed under para. 20 of Sch. II, Civil Procedure Code, for the award of an arbitrator being made a rule of the Court. Along with the application was filed a vakalatnama executed by the plaintiff-appellant in favour of seven legal practitioners one of whom was Mr. Yusuf Husain. The application and the vakalatnama were presented by the, said Mr. Husain. The respondent filed objections to the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he general rule is that an absolute, enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment is obeyed or fulfilled substantially. It has always been held that where no public policy is involved, the provisions of a Statute should be held to be directory only and not mandatory. Here it cannot be suggested that there is any public policy involved. Applying this canon of interpretation it must be held that the provisions of O. 3, R. 4, are directory only. 61. It may also be noted that while the body of the Code is unalterable except by the Legislature and is expressed in more general terms it is to be read in conjunction with the rules which are more readily alterable and which are concerned with details and machinery indicating the mode in which the jurisdiction created by the body of the Code is to be exercised. As Mahmood, J., observed in Narsingh Das v. Mangal Dubey, ILR 5 All 163 (FB) (T): "Courts are not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code but on the converse principle that every procedure; is to be understood as permissible till it is shown to be p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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