TMI Blog2006 (7) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 45 read with section 140 - In a case of this nature, the appellate authority must always afford an opportunity to the appellant to remove the defect noticed by the authority rather than to penalise him by dismissing his appeal. – revenue’s appeal fails - - - - - Dated:- 11-7-2006 - Judge(s) : A. M. SAPRE., N. K. MODY. JUDGMENT The judgment of the court was delivered by A. M. SAPRE J.-The decision rendered in this appeal shall also govern the disposal of the other connected appeal being I. T. A. No. 62 of 2004, because both these appeals arise between the same parties and involve the same point. This is an appeal filed by the Commissioner of Income-tax under section 260A of the Income-tax Act, 1961 against an order dateg Novembe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igned by an advocate and, hence, it is not maintainable. As a consequence, the appeal was dismissed on this short ground without examining the merits of the case. It is against this order, the assessee (respondent) filed an appeal to the Tribunal. By the impugned order, the Tribunal allowed the appeal and set aside the order of the Commissioner of Income-tax (Appeals). It was held that not signing of the memo of appeal by the assessee and signing of the same by their advocate can at best be regarded as an irregularity and not illegality so as to empower the appellate authority to dismiss the appeal as not maintainable. In the opinion of the Tribunal in such a case instead of dismissing the appeal outright, the appellate authority should hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s v. Bobaji Dahyaji Kotwal, AIR 1953 Bom 28. In that case, the plaint was signed by a son of the plaintiff who had no authority to sign on behalf ot the plaintiff. The plaintiff then made an application for amendment seeking permission to sign the plaint. It is this application which was rejected by the trial court which gave rise to filing of a revision by the plaintiff before the High Court. Allowing the revision and setting aside the order passed by the trial court, the learned Chief Justice Chagla, held as follows: "A plaint signed by the son of the plaintiff who had no proper authority to sign it on behalf of the plaintiff can be allowed to be amended at a later stage by allowing the plaintiff to sign irrespective of the bar of limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the trial court makes a reservation in favour of the defendant that he could raise the plea of limitation, the discretion of the appellate court in the matter cannot be deemed to have been taken away. It is open to the appellate court in a proper case to set aside that reservation and to order that the amendment shall take effect from the date of the presentation of the plaint. I would, therefore, reverse the finding of the lower appellate court on this point and hold that the plaintiffs suit cannot be held to be timebarred on the ground that the plaint was not properly signed at the time of its presentatiori (After discussing the evidence his Lordship proceeded). In this view ofthe matter, it must be held that the findings given by the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a recent decision reported in Uday Shankar Triyar v. Ram Kalewar Prasad Singh [2006] 1 SCC 75. It is in this case, their Lordships in clear terms on similar facts though arose in civil law held that such omission only amounts to an irregularity and hence, the litigant must be afforded an opportunity to rectify the omission rather than to dismiss the appeal outright making such a defect the basis for dismissal. Placing reliance on the well known English authority, reported in Cropper v. Smith [1884] 26 Ch D 700 (CA), wherein their Lordships had observed that: "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 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y but they are directory in nature. In any event, an opportunity to remove the defect before dismissal of the appeal has to be afforded to the appellant so as to make filing of the appeal in accordance with the requirement of section 140 read with rule 45 ibid. It should always be the endeavour of the courts/tribunals who are invested with the power to decide the rights of the parties to do substantial justice between the parties and not to penalise them for their faults while prosecuting their lis. Indeed, this is what is consistently reminded of by the Supreme Court to all courts for observance. We can never ignore the subtle observations made by the Supreme Court in one of the most coveted decision reported in Sangram Singh v. Election T ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
