Prafulla Chandra Bidwaj vs All India Institute Of Medical ...
2000 Latest Caselaw 1065 Del

JUDGMENT

Devinder Gupta, J.

1. The order passed pn 19.1.2000 by learned single Judge is under challenge in this appeal by the plaintiff/appellant his application, declining to restore the suit.

2. Facts in brief are that on 25.9.1991 plaintiff/appellant filed a suit for recovery of Rs. 8,64,336/- as damages with interest thereon @ 18% p.a. from the date of decree till date of realisation against the defendants. The suit was instituted through B.V. Desai, Advocate. Pleadings of the parties were complete. Suit was at the stage of framing of issues and was taken up for the said purpose on 5.10.1998 As nobody appeared for the plaintiff, the suit was dismissed in default. Learned counsel for the defendants was present. After the order had been passed, Mr. Anil K. Kher, Advocate appeared for the plaintiff and stated that he reached late in Court because his car had broken down on the way. This fact was recorded in the order sheet. An application (IA 9004/98) was moved by Mr. Anil K. Kher, Advocate on behalf of the plaintiff on 12.10.1998. The said application for restoration of the suit was vehemently opposed by the defendants. inter-alia, on the ground that Mr. Anil K. Kher, Advocate had no authority to file the application since he was not the counsel in the suit and there was no vakalatnama executed in his favour. Without deciding the said objections raised by the defendants, learned Single Judge by his order dated 11.3.1999 allowed the application. Against this order an appear [FAO(OS) 143/99] was preferred by the defendants. The said appeal was allowed on 20.5.1999. the order restoring the suit was set aside. Learned Single Judge was asked to decide the application afresh after taking into consideration the objections raised by the defendants that the application for restoration was not maintainable since it had been signed and presented by Mr. Anil K. Kher, Advocate who had not been appointed an Advocate by the plaintiff.

3. On 20.9.1999 another application (IA 9473/99) was filed by the plaintiff seeking permission to place on record the accompanying affidavit of the plaintiff along with fresh vakalatnama in favour of Mr. Anil K. Kher, Advocate. In the affidavit accompanying the said application, the plaintiff deposed that before institution of the suit, he had signed a vakalatnama in favour of Mr. Anil K. Kher, Advocate, who had been appearing in the matter since the inception of the suit. After signing vakalatnama, it was handed over to Mr. Anil K. Kher for filing in the Court. As such, Mr. Anil K. Kher was duly authorised by him to appear in the suit and had been so appearing. The affidavit further says that when Mr. Anil K. Kher informed the plaintiff that vakalatnama is not on record and it might have been misplaced, therefore, another vakalatnama was being filed. In other words the plaintiff ratified the act of Mr. Anil K. Kher, Advocate having appeared on his behalf in the suit. Fresh vakalatnama thus was filed on the suit record on 26.7.1999. This application was also opposed by the defendant on the ground that a new plea had been taken that from the very institution, Mr. Anil K. Kher had been engaged as a counsel, which was not a plea taken earlier when the appeal was filed by the defendants against the order of restoration of suit and secondly, the plaintiff had been highly negligent in conduct of the suit. Attention of the plaintiff had already been drawn to the fact that there was no vakalatnama on record in favour of Mr. Anil K. Kher when the defendants filed their reply to the earlier application seeking restoration of the suit. Despite this no steps were taken apparently to file vakalatnama. As such, there was no occasion to take fresh vakalatnama on record.

4. Learned Single Judge considering the facts and circumstances of the case and making reference to the decisions cited before him concluded that no doubt the rules of procedures should not be employed to defeat the dispensation of justice and strict adherence to procedure, to which the former is a handmaid, has to be eschewed, does not lead to the conclusion that procedural requirement can be thrown to winds and can be contumaciously ignored. He observed that though objection was taken at the earliest pertaining to the authority of the counsel which was ignored contumaciously and vakalatnama was filed as late as July, 1999. He observed that the provisions contained in Order 3 C.P.C. as well as in Delhi High Court (Original Side) Rules, 1967 were mandatory in character since it was essential that vakalatnama should not only be signed by the party to the litigation, but should also have been filed in Court. In the absence of its filing, an Advocate cannot act on behalf of the party. Taking this view of the matter, the applications have been dismissed. Appeal is against the said order.

5. We have heard learned counsel for the parties and been taken through the record. At the very outset, looking at the facts and circumstances of the case, we may observe that though to some extent the plaintiff has to be blamed in having remained negligent in not prosecuting the suit as well as the application seeking restoration of the suit diligently, but still the question is whether a lawfully constituted suit can be thrown out without due trial because of procedural irregularities of not filing vakalatnama in favour of an Advocate, who moved the application seeking restoration of the suit. It is not the case of the defendants that the suit has been instituted by the plaintiff without a vakalatnama in favour of the Advocate, who presented it in court. There is a vakalatnama on record executed by the plaintiff in favour of Mr. B.V. Desai, Advocate. It is now stated in the memorandum of appeal that two separate vakalatnamas were signed by the plaintiff, one in favour of Mr. B.V. Desai and the other in favour of Mr. Anil K. Kher and the same were filed on the suit record. Admittedly, despite the fact that an objection was raised in reply filed before 11.1.1999, no effort was made to ascertain whether vakalatnama in favour of Mr. Kher was or was not on record. Fresh vakalatnama was not filed till July, 1999. It cannot be ascertained from the suit record whether the plaintiff had or had not filed vakalatnama prior thereto in favour of Mr. Anil K. Kher since there is no vakalatnama on record except the one which was filed in July, 1999. Can the plaintiff be penalised for the said act, is a question to be decided by us? In the absence of vakalatnama in favour of Mr. Anil K. Kher, there is no manner of doubt that it would be an improper presentation of the application, i.e. presentation by a person not authorised to represent the plaintiff. Mr. Anil K. Kher in the absence of any written authority duly signed by the plaintiff, had no locus to act on behalf of the plaintiff: The general doctrine of ratification applicable in the matter of principal and agent would apply with all force in such situation, as has been statutorily incorporated in Section 196 of the Contract Act, 1872, which says:-

"196. Right of person as to acts done for him without his authority-Effect of rectification - Where acts are done by one person on behalf of another, but without his knowledge or authority, he may elect to ratify or to disown such acts. If he ratifies them, the same effects will follow as if they had been performed by the authority."

6. In Machireddi Narappa v. Proddatur Subbarayadu and Ors., , an execution petition filed by a vakil, who had no vakalatnama from the decree holder was held to be a mere irregularity, when the decree holder ratified such an act by filing vakalatnama. in favour of the vakil later on. Full Bench Andhra Pradesh in Nadella Satyanarayana v. Yamanoori Venkata Subbiah, AIR 1957 AP 172 (F.B) also held that such a defect is not fatal and could be cured at a subsequent stage. The question referred to the Full Bench was answered in affirmative holding:-

"The presentation of an application by a pleader to whom the authority in the prescribed manner under P.4 of 0.3, Civil Procedure Code, was not given, is not a nullity but only an irregularity which could be cured at a sub- sequent stage."

7. The very act of the plaintiff having filed an affidavit with a fresh vakalatnama will amount to ratifying all acts of Mr. Anil K. Kher. There is no dispute that Mr. Anil K. Kher had been appearing in this case prior to the date when the suit was dismissed for default. First appearance by him was on 6.11.1992. Thereafter he appeared in Court on behalf of the plaintiff on 22.8.1995, 29.1.1996, 11.3.1997, 7.7.1997, 10.2.1998 and 17.7.1998. Needless to add that even at the stage of admission and denial of documents on 10.2.1998, Mr. Anil K. Kher appeared before the Joint Registrar. There is also no manner of doubt that an advocate by virtue of Rule 1 of Chapter V of Delhi High Court (Original Side) Rules is entitled to appear on behalf of the party only on filing of vakalatnama duly executed and in that sense provision is mandatory and so is the provision contained in Order 3 Rule 4 C.P.C. as observed by learned Single Judge. Any act done by such an Advocate in the absence of a written authority will not ipso facto become null and void since such acts can be ratified later on. Later Single Judge proceeded to take a very conservative view of the matter. The act of Mr. Anil K. Kher of filing the application on behalf of the plaintiff under a bona fide belief that vakalatnama was signed and filed in Court though actually was not filed, thus stood ratified later on. We are of the view that the impugned order is liable to be set aside since a cause lawfully brought before the Court deserves to be decided on merits and does not deserve to be scuttled because of procedural wrangles. It was not a matter in which such a conservative approach might have been adopted when the defendants/respondents could have been compensated in terms of money in case there was any lapse on the part of the plaintiff.

8. Consequently, we allow the appeal and set aside the impugned order, but subject to payment of Rs. 10,000/- as costs. The applications of the plaintiff (LA. Nos. 9004/98 and 9473/99) are allowed. Suit is ordered to be restored to its original number. The parties will now appear before learned Single Judge on 4th December, 2000.