Prafulla Chandra Bidwai vs All India Institute Of Medical ...
2003 Latest Caselaw 242 Del

JUDGMENT

Pradeep Nandrajog, J.

1. The order passed on 19.1.2000 by learned Single Judge is under challenge in this appeal by the plaintiff/appellant. By the impugned order the Single Judge has declined to take cognizance of the application filed by the plaintiff under order 9 Rule 4 CPC. Operative part of the impugned order reads as under:-

"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 part, 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.

In the absence of the application having been signed by the Applicant/Plaintiff or his duty 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."

2. Question which arises for our consideration is: whether an application filed by an advocate on behalf of a party in the absence of any vakalatnama by the party in favor of the counsel is non est, incapable of being regularized by the subsequent filing of a vakalatnama by the counsel?

3. 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. till date of realization 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 opposed by the defendants. On 9.3.1999 the defendant filed reply. One of the objection taken was that the application for restoration was filed by Sh. Anil Kher under his signature and his personal affidavit but had no vakalatnama in his favor. 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 appeal (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 no vakalatnama, in his favor.

4. 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 favor 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 favor 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 reaffirmed the fact 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 has 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 favor 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.

5. 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 former is a handmaid, has to be eshewed, 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 CPC 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.

6. We have heard learned counsel for the parties and have been taken through the record of the suit.

7. The suit was instituted under the signatures of the plaintiff and was filed by Sh. B.V. Desai Advocate in whose favor a vakalatnama was duly executed by the plaintiff and said vakalatnama was filed along with the plaint. Suit was thus instituted and filed as per the provisions of the Code of Civil Procedure. No vakalatnama existed on the record in favor of Shri Anil Kher till one was filed by him on 26.7.1999. Plaintiff alleges that he had executed one in favor of Sh. Anil Kher Advocate at the time he had instituted the suit. None exists on record and it cannot be ascertained from the suit record that one was filed. We treat that none was filed. Thus when Sh. Anil Kher filed the application under Order 9 Rule 4 on 12.10.1998 it was an improper presentation of the application i.e. it was presented by a person having no vakalatnama in his favor on the suit record.

8. The matter however does not rest here. Suit record shows that Sh. Anil Kher had been appearing and representing the plaintiff much prior to the date when suit was dismissed for default. He first appeared on 6.11.1992. He thereafter appeared on 22.8.1995, 29.1.1996, 11.3.1997, 7.7.1997, 10.2.1998 and 17.7.1998. Order dated 10.2.1998 is important. It is recorded that plaintiff had appeared in person along with Sh. Anil Kher for conducting admission/denial of documents. Defendant had at no stage objected to Sh. Anil Kher acting or pleading on behalf of the plaintiff. Indeed the court also did not question the authority of Sh. Anil Kher to represent and act on behalf of the plaintiff. Appearance by the plaintiff along with Sh.Anil Kher on 10.2.1998 shows that plaintiff was aware that Sh. Anil Kher was representing him meaning thereby that Sh. Anil Kher was authorised by the plaintiff to act on his behalf.

9. Rules 1 and 4 of Order 3 of the Code of Civil Procedure 1908 constitute the foundation of the contention of the parties and may be noted:-

"1. Appearances, etc. may be in person, by recognized agent or by pleader,-

Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a part in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader (appearing, applying or action, as the case may be,) on his behalf:

Provided that any such appearance shall, if the Court so directs, be made by the party in person.

4. Appointment of pleader,-

(1) No pleader shall act for any person in any Court unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized by or under a power-of-attorney to make such appointment.

(2) Every such appointment shall be (filed in Court and shall, for the purposes of sub-rule (1), be) deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client."

10. By virtue of Rule 1, appearance, application or act in a court, required or authorized by law to be made or done by a party may be made by a pleaded on his behalf. Rule 4 mandates that for a pleader to act for a person in any court, he should be appointed for the purpose by the person concerned, evidence by a document in writing, duly signed by the person or his duly constituted attorney acting under a power of attorney. Such appointment is required to be filed in court. Similar is the provision of Rule 1 of chapter V of Delhi High Court (Original Side) Rules. The word 'act' is used as a noun in Rule 1 and is used as a verb in Rule 4. The word 'act' has not been defined either in the Code itself or in any other Statute. It is therefore legitimate to assume that it has been used in a cognate sense in both the rules because the two rules are to be found in the same order of the Code and relate to the same topic. In our task of interpreting the true intent and meaning of particular words of a statute we seek guidance by the rule laid down, per curium, as early as 1822 in The King Vs. Hall (1822) 1 B & C.123.

"the meaning of particular words in Acts of Parliament as well as other instruments, is to be found not so much in a strict etymological propriety of language, nor even in popular use, as in the subject or occasion, on which they are used, and the object that is intended to be attained."

11. Rules 1 and 4 of Order 3 CPC are rules of procedure. Their primary object is to facilitate the progress of court proceedings and not to cause obstruction or inconvenience. Rule 1 gives a facility to a party to do acts in court which otherwise would have to be performed by the party in person. Object of Rule 4 is to have the authority in favor of a pleader to prevent perpetration of fraud by an unauthorized person taking steps without consent or knowledge of a party and to avoid waste of time of courts, which would otherwise be involved in deciding whether a particular step taken by a person, not duly authorized, was otherwise authorized.

12. The Code authorizes litigants to act in courts in person or pleaders. Where a person acts on behalf of another, it is the animus that guides and supervises the performances of the act and assumes its authorship and not the performance of various physical acts that makes the transaction an act of the person who controls its performance.

13. Thus, if there is otherwise material on record to determine whether an advocate had authority given by a party to a suit proceeding to act on his behalf, the defective doing of an act or filing of a pleading constitutes a mere irregularity, curable by an act of rectification.

14. There is a catena of judicial pronouncements that defect in compliance with the procedural requirements of the Code of civil Procedure 1908 are mere irregularities and are curable; capable of being rectified. Defects in presentation and filing of suit plaints and written statements have been held to be curable. We need not refer to the same. We only note the judgments where acts performed by pleaders were questioned on the ground that there was no vakalatnama on record in their favor. It was held that these are curable defects being mere irregularity in procedure.

15. Machireddi Narappa Vs. Proddatur Subbarayadu. It was held that presentation of an excution petition by a vakil who had no vakalatnama from the decree holder is mere irregularity curable by subsequent filing of vakalatnama. The execution petition was filed within 12 years of decree but vakalatnama was filed after the period of 12 years had lapsed. It was held that filing of vakalatnama cures the formal defect. AIR 1957 A.P. 172, Nidhela Satyanarayana Vs. Yamanoori. Similar was the position as existed in the Madras case. It was held:

"There is a well known distinction between a case where the directions of the legislature are imperative and a case where they are directory. The general rule is that an absolute enactment must be obeyed or fulfillled exactly, but it is sufficient if a directory enactment is obeyed or fulfillled substantially. It has always been held that where no public policy is involved, provisions of a statute must be held to be directory only and not mandatory. The provisions of Order 3 Rule 4 are directory only."

16. AIR 1962 J & K 83, Raghunath Devi Vs. Admn.Srinagar Municipality. Suit was dismissed in default. Application was filed under Order 9 Rule 4 which was signed and filed by advocate who had no vakalatnama. Same was subsequently filed. It was held that defect stood cured irrespective of the period of limitation prescribed for filing an application having expired.

17. Shastri Yagnapurushdasji Vs. Muldas Bhundirdas. Appeal was filed by Assistant Government Pleader by accepting a vakalatnama issued in favor of Government Pleader. Objection raised was that appeal was filed by an advocate who had no authority. Vakalatnama was executed in favor of Government Pleader and it was argued that Assistant Government Pleader could not act pursuant thereto. Government pleader was allowed to sign the vakalatnama subsequently to cure the technical irregularity. It was held that defect being curable stood cured by subsequent act.

18. AIR 1972 J & K 19 Hari Kishan Shah Vs. Tilak Raj Bhasin. Vakalatnama was filed with plaint but was not signed by the counsel but he had conducted the proceedings. Suit was dismissed in default. Application for restoration was filed under Order 9 Rule 4. Objection was taken that counsel had no vakalatnama as the one on record was not accepted by counsel, being not singed. Another duly executed and accepted vakalatnama was filed. It was held that defect was procedural irregularity and was curable.

19. Suresh Krishnaji Patil Vs. Shankarappa Shidrayappa Balekundri. It was held:-

"Presentation of a petition without signing the vakalatnama is a mere irregularity which does not go to the root of the matter and does not vitiate the proceedings. Initiation of further proceedings on basis of a plaint presented without signing vakalatnama also involves an additional dimension, namely, the fault of a court or its office and it is a well established principle of law that no party should suffer because of the fault of the court or its officer."

20. 1984 (Suppl) SCC 597 Bihar State Electricity Board Vs. Bhoura Kankanea Collieries Ltd. It was held that failure to file vakalatnama being a technical fault should not have resulted in dismissal of the appeal. Non compliance with procedural requirements was held to be curable. Dismissal of appeal by High Court was set aside. Inconvenience caused to other party by negligence of appellant was compensated with cost.

21. We thus allow I.A. No. 9473/99. Vakalatnama filed by Sh.Anil Kher Advocate is directed to be taken on record.

22. We have noted above that Sh. Anil Kher had been appearing on behalf of the plaintiff since 1992 without any objection being taken to his authority to act and plead on behalf of the plaintiff. Order dated 10.2.1998 in particular shows that on said date Sh. Anil Kher appeared for admission/denial of documents along with the plaintiff. This shows that Sh. Anil Kher was authorized by the plaintiff to appear in the suit on behalf of the plaintiff.

23. At this stage, we may also note the judgment of the Supreme Court United Bank of India Vs. Naresh Kumar & Ors.. The case related to a dispute whether the Branch Manager of the Bank Sh. L.K. Rohatagi, had authority to institute the suit on behalf of the Bank. It was noticed that no document was proved during trial that Sh. L.K. Rohatagi had the authority to institute the suit. This resulted in the dismissal of the suit. Over-ruling the said view, it was observed that too technical an approach which defeats justice should not be permitted. It was held that issue had to be looked at from a very wider perspective and conclusions drawn on the authority to institute the suit. The following observations are relevant and may be noted:-

"13. The court had to be satisfied that Shri L.K. Rohatgi could sign the plaint on behalf of the appellant. The suit had been filed in the name of the appellant company; full amount of court fee had been paid by the appellant-Bank; documentary as well as oral evidence had been led on behalf of the appellant and the trial of the suit before the Sub-Judge, Ambala, had continued for about two years. It is difficult, in these circumstances, even to presume that the suit had been filed and tried without the appellant having authorised the institution of the same. The only reasonable conclusion which we can come to is that Shri L.K. Rohatgi must have been authorised to sign the plaint and, in any case, it must be held that the appellant had ratified the action of Shri L.K. Rohatgi in signing the plaint and thereafter it continued with the suit."

24. Suit was dismissed in default on 5.10.1998. After order was passed Sh. Anil Kher appeared and made mention to recall the order. Reason stated for non appearance was that his car had broken down on the way. This fact was recorded in the order sheet. Application was thereafter filed on 12.10.1998. Cause shown for non appearance when the case was taken up for hearing is, in our opinion, a sufficient cause. Order dismissing the suit is liable to be set aside. However, we must express our disapproval of the plaintiff's and his counsel's neglect do not only confirm to the rules of the court but also being highly negligent in curing the defect. Objection regarding authority of Mr. Anil Kher to act on behalf of the plaintiff in the absence of a vakalatnama in his favor was taken on 9.3.1999. Prompt steps were not taken to cure the defect. It was only on 20.9.1999 that defect was cured. To compensate the defendant we order costs to be paid by the plaintiff.

25. We allow the appeal and set aside the impugned order. We allow IA No.9004/1998 under Order 9 Rule 4 CPC subject to payment of costs in the sum of Rs. 25,000/- (Rupees twenty five thousand only) to be paid by the plaintiff to the defendant within 3 weeks from the date of passing of this order. On payment of costs, the suit shall stand restored.

26. Parties are directed to appear before the learned Single Judge on 22.4.2003.