Prafullachandra Bidwai vs Aiims & Anr.
2000 Latest Caselaw 1064 Del

ORDER

Vikramajit Sen, J.

1. The facts germane for the disposal of this application need to be mentioned. A suit for damages was filed by the plaintiff in September 1991 through his Advocate Shri B.V.Desai, whose vakalatnama appears to have been filed along with the plaint. A perusal of the record shows that the first appearance made by the present counsel for the Plaintiff Shri Anil Kher was on 6.11.1992, and he continued to appear for the plaintiff, intermittently, thereafter. On 5.10.1998 the suit was dismissed in default, since there was no appearance on behalf of plaintiff when the case was called on for hearing. The present application under Order 9, Rule 4 was filed on 12.10.1998. In reply thereto, as the first preliminary objection, it was stated on behalf of Defendants that the Counsel who had filed the application had not been duly authorized in this regard. It was further stated that the application, which was supported by an affidavit of the Clerk of this Advocate, was not proper. It was further averred that the conduct of the Applicant/Plaintiff had been negligent throughout. The reasons given in the application for the non-appearance were also challenged. This reply was filed in March 1999. However, another application, bearing No. 9473/99, was filed on 29.7.1999 by the Plaintiff seeking permission for taking on record his affidavit along with the "fresh" vakalatnama. It has been stated in the affidavit that the Plaintiff, before the institution of the suit, had signed a vakalatnama in favour of Shri Anil Kher and accordingly he was authorized on plaintiff's behalf since the institution of the suit.

2. The Defendants have seriously and vigorously challenged the restoration of the suit on the ground that it has been pending since 1991 and no substantial progress has been made and that the intention of the Plaintiff is only to harass the Defendants by keeping the litigation pending like the Sword of Domocles. It has been strenuously argued that even without entering upon the varacity and correctness of the reasons given by the Applicant/Plaintiff for the non-appearance on the date when the suit was dismissed, the present application is not maintainable since it has not been filed or signed by the plaintiff or any person duly authorised by him. It is contended that the provisions of law, that is, Order IX, Rule 9, are explicit and mandate that the plaintiff may apply for an order to set the dismissal of the suit aside. It is further contended by the Defendants that Order 3, Rule 4(2) mandates that every appointment of the Pleader shall be filed in Court. My attention has also been drawn to Chapter V, Rule 1 of the Delhi High Court (Original Side) Rules, 1967 which similarly mandate that the written authority (vakalatnama) must be filed in the Court for it to have any representational efficacy. It has further been submitted that in view of the orders of the learned Division Bench the facts now sought to be introduced by way of I.A. 9473/99 must be ignored since the case was remanded back for disposal of the present application specifically on the ground of the non-availability of vakalatnama in favour of Shri Anil Kher, Advocate.

3. Learned counsel for the Applicant/Plaintiff has relied on Sarabjit Singh & Ors. Vs. All India Fine Arts & Crafts Society & Ors., AIR 1990 NOC 26 in which it was held that failure by some of the plaintiffs to sign the plaint could be rectified subsequently and that these being procedural matters, it would be inappropriate to non-suit a party because of meticulous compliance with the rules. He further relied on All India Reporter Limited, Bombay with Branch Office at Nagpur & Anr. Vs. Ram Chandra Dhondo Datar, and Karam Singh Vs. Ram Rachhpal Singh & Ors., where similar views were expressed and failure to sign the plaint was not found to be sufficient for the dismissal of the suit. He also made a mention of a decision rendered in S.No. 252/93 entitled Shri Chander Mohan Jain & Ors. Vs. State Bank of Patiala & Anr.

4. No doubt rules of procedure should not be employed to defeat the dispensation of justice. Strict adherence to procedure, even at the expense of justice, to which the former is a handmaid, has to be eschewed. This, however, does not lead to conclusion that procedural requirements can be thrown to winds and can be contumaciously ignored. As has been mentioned hereinabove despite the objection having been taken, at the very threshold, pertaining to the authority of the counsel for the Applicant/Plaintiff, this objection was ignored and a vakalatnama was filed as late as July 1999, that is after the application was heard in the first instance and the case was remanded back by the Division Bench for a decision on this very point. Thereafter a self-serving affidavit has been filed by the Applicant/Plaintiff in which it has been deposed that a vakalatnama had been executed in favour of Shri Anil Kher, Advocate even prior to the filing of the suit. This statement is belied by the fact that the vakalatname filed at the time of the institution of the suit was in favour of Shri B.V. Desai. I cannot see no reason why, if one vakalatnama had been filed the other was not filed. In any event there is substance in the submission of the learned counsel for the Defendants that this ground ought to have been stated immediately on the objection having been raised by them on the filing of the present application. It appears to me that the affidavit has been filed in order to overcome the lacunae in the case and should therefore not be countenanced.

5. The grounds for rejecting a plaint are contained in Order VII, Rule 11, a reading of which shows that failure to sign a plaint would not be sufficient for non suiting the plaintiff. In the cases cited before me there is no instance of a plaint having been filed which was neither signed by all the plaintiffs nor their duly authorised agent or their Advocate. It would be a moot point whether a so-called plaint, not signed by any of the Plaintiff or their duly appointed Advocate could still be considered as a plaint and be open to regularization/rectification subsequently. However, in view of the mandatory provisions contained in Order III CPC as well as the Delhi High Court (Original Side) Rules 1967, I consider it essential that a vakalatnama should not only have been signed by a party to the litigation but should also have been filed in Court. In the absence of its filing in distinction to its execution, an Advocate cannot act on behalf of a party. The learned counsel for the Defendants have submitted that the plaintiff ought to have been present on the date of the dismissal of the suit, and no explanation has been given in the application to justify his absence. It is firmly established that a party, having entrusted his case to his Advocate, need not be present on every hearing of the case. I cannot also accept the submission that the application to set the dismissal aside must be filed by the plaintiff personally.

6. In the absence of the application having been signed by the Applicant/Plaintiff or his duly constituted attorney or his Advocate, it is not open to the Court to consider the present application for setting the dismissal aside, which is rejected. However, the parties will be left to bear their respective costs.

I.A. 9473/99

7. Since I.A. 9004/98 has been dismissed and the suit has not been restored this application does not call for consideration and is dismissed.