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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 ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strict 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciety 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 tru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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