1. Present writ petition is filed by the petitioners challenging the order dated 13.11.1992 passed by the Vth Additional District Judge, Faizabad whereby the learned Additional District Judge has allowed the Revision no.85 of 1987 filed by the defendants.
2. Facts of the case are that in absence of the plaintiffs, the suit was dismissed on 30.5.1984. A restoration application was filed, which was numbered as Misc. Case No.30 of 1984. The same was also dismissed in default on 19.1.1985. On 21.1.1985, another recall application for recalling the order dated 19.1.1985 was filed which was numbered as Misc. Case No.12 of 1985. By an order dated 8.5.1987, the court below allowed the Misc. Case No.12 of 1985 and recalled the order dated 19.1.1985. Against the said order, a revision was filed. Objection raised in the revision was that Misc. Case No.12 of 1985 was not filed by the plaintiffs, but by Sri Mohd Haneef, Advocate, though he was not an advocate for the plaintiffs. Therefore, the recall application was not filed properly. The ground taken was that Sri Mohd. Haneef, Advocate had not signed the Vakalatnama for the plaintiffs. The said revision was opposed by the plaintiffs. The revisionists before the revisional court had relied upon the judgments reported in AIR 1931 Allahabad 767, Chheeta vs Musammat Maiko and others and AIR 1935 Allahabad 727 Official Receiver, Aligarh versus Hiralal and others. The respondents in revision had relied upon the judgments reported in AIR 1957 Andhra Pradesh 172, Mahela Salnarayanan vs Bamnoori Bank Someshya, AIR 1946 Bombay 174 Hira Lal and Gendalal versus Bhagirathi Ram Chander and Company, and 1949 ALJ 105 Kanhaiyalal versus Panchayati Akhada by Dharamdas.
3. Considering the facts and circumstances of the case, the court below held that since the Vakalatnama was signed only by the plaintiffs and not by Sri Mohd. Haneef, Advocate, therefore, Sri Mohd. Haneef, Advocate was not properly appointed as a lawyer and thus, it is an error which cannot be corrected and, therefore, the application was liable to be rejected. Against the said order, present writ petition is filed.
4. Learned counsel for the petitioners, in support of his submissions, has placed reliance upon a judgment of the Supreme Court in the case of Uday Shankar Triyar versus Ram Kalewar Prasad Singh 2006 (1) SCC 75. In the said case, against eviction order, two persons, namely, A.N. Singh and DCC (District Congress Committee) filed Eviction Appeal No.4 of 1998. During pendency of appeal, first appellant A.N. Singh died and 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 name of the first appellant and to show DCC as sole appellant. The said application for substitution was opposed by the landlord. On hearing the said substitution application, 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, Vakalatnama accompanying the memorandum of appeal was signed only by A.N. Singh and no Vakalatnama was filed on behalf of DCC. Therefore, the court held that appeal on behalf of appellant no.2-DCC is nullity in the eyes of law and is liable to be dismissed and is dismissed, as no legal heirs have come by substitution in place of appellant no.1. The said order was challenged before the high court and the high court had taken a different view and had found the appeal maintainable. Thereafter, the matter went to Supreme Court and the Supreme Court in the said facts and circumstances of the case, held as follows:
"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 memorandum of appeal 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, 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 authorised 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 authorised 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 giving 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. ............................
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 handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised 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 mischievous;
(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 appellant.
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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 authorisation 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."
5. Further, reliance is placed by learned counsel for the petitioners upon a judgment of this Court in the case of Gauri Shanker and others versus 3rd ADJ, Balia and others 2010 (6) ALJ 270. In the said case this Court has relied upon the judgment of the Supreme Court in the case of Uday Shankar Triyar (supra) and held as under:
"15. So far as the objections of the learned Counsel for the respondent with regard to the maintainability of restoration application in derogation of Order III, Rule 4(1) of C.P.C. is concerned, it is well settled that the procedural law are not always mandatory and sometime it is directory and curative in nature in view of the decisions of the Apex Court in Kailash v. Nanhku [2005 (29) AIC 95 (SC) : 2005 (4) SCC 480.] , Rani Kusum (Smt.) v. Kanchan Devi (Smt.) [2005 (99) RD 616 (SC) : 2005 (33) AIC 85 (SC).] , Dove Investments (P) Ltd. v. Gujrat Industrial Investment Corporation Ltd. [2006 (39) AIC 102 (SC) : 2006 (2) SCC 619.] .
16. Here in this case it cannot be disputed that for appearing in the Court of law on behalf of a party proper written authorisation is necessary but under certain circumstances Counsel can put in appearance on oral instructions also provided he is authorised for the said purpose and at later stage bring on record a signed authorization i.e., vakalatnama executed in his/her favour.
17. Learned Counsel for the respondent may be right in his submissions that no one should be heard for a party unless he is duly authorised through signed vakalatnama to appear before the Court. However in this case although the Counsel appeared but on oral instruction of the applicant and not through signed vakalatnama, now the signed vakalatname has been executed in favour of Vivek Kumar Singh and filed in the Court therefore in my view the defect if any stood cured."
6. Learned counsel for the respondents has strongly relied upon the case laws referred to by the revisional court and has opposed this petition.
7. I have considered the submissions made by learned counsel for the parties and perused the record.
8. The Supreme Court as well as this Court by its judgment passed in the year 2006 and 2010 have specifically held that mere defect in filing of power by not signing the same by counsel is not a defect which cannot be cured.
9. In view of the law settled by the Supreme Court in the case of Uday Shankar Triyar (supra) and this Court in the case of Gauri Shanker (supra), the view taken by the revisional court is no more sustainable in law.
10. In view thereof, the judgment and order dated 13.11.1992 passed by the revisional court is set aside. The order of the court below dated 8.5.1987, by which restoration in Misc Case No.12 of 1985 was allowed, is maintained. Since it might be one of the oldest suits before the court concerned, it shall proceed with the same expeditiously, without granting any unnecessary adjournments including on the ground of strike of lawyers.
11. With the aforesaid, present writ petition stands allowed.
[Vivek Chaudhary,J.] Dated: October 23, 2021 Sachin