Orissa High Court

Satyanarayana Sahu And Others vs Khirod Kumar Sahu And Others ... ... on 4 July, 2025

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

                IN THE HIGH COURT OF ORISSA AT CUTTACK

                                C.M.P. No.611 of 2024

        (Application under Article 227 of the Constitution of India)


        Satyanarayana Sahu and others ...                                  Petitioners

                           -versus-
        Khirod Kumar Sahu and others                           ...         Opposite Parties


          Advocates appeared in the case through hybrid mode:


                For Petitioners                      : Mr.S.S.Rao,
                                                       Sr. Advocate.

                                             -versus-

               For Opposite Parties
                                                     : Mr. P.K.Rath, Sr.Advocate

             ---------------------------------------------------------------------------
                                            CORAM:
                            JUSTICE SASHIKANTA MISHRA

                                        JUDGMENT

04.7.2025.

Sashikanta Mishra,J. The Petitioners are defendants and

Opp.Party No.1 is the Plaintiff in C.S. No.86/2022

pending in the Court of learned Civil Judge

(Sr. Division), Titlagarh. Opp. Party Nos.2 to 20 are the

proforma defendants in the said suit. In the present

application, the Petitioner-defendants call in question

the correctness of order dtd.7.3.2024 passed by the

court below whereby, their application for acceptance

of written statement filed belatedly was rejected.

2. Bereft of unnecessary details, the facts of the case

are that the aforementioned suit has been filed for

partition of the suit properties. Upon receipt of

summons, the contesting defendants entered

appearance but did not file written statement within

the stipulated period. It is stated that the Petitioners

are residents of Cuttack and are of advanced stage. As

such, they had prepared the written statement at

Cuttack which being supported by affidavit was

notarized at Cuttack. The said written statement was

thereafter sent to their Advocate at Titlagarh for filing.

The written statement was filed along with an

application on 20.1.2023 for acceptance of the same.

The Plaintiff-Opp. Party No.1 filed objection to the

petition contending that the same was contrary to the

provisions of Order III Rule 4 and Order VI Rule 14 of

C.P.C. After hearing both parties, the Court below

rejected the Petition filed by the defendants for

acceptance of the written statement vide order dated

7.3.2024. The said order is impugned in the present

application.

3. Heard Mr. S.S.Rao, learned Senior counsel with

Mr. B.K.Mohanty, learned counsel, appearing for the

Defendant-Petitioners and Mr. P.K.Rath, learned

Senior counsel with Ms. S. Rath, learned counsel

appearing for the Plaintiff-Opp. Party No.1.

4. Mr. Rao would argue that the court below

adopted a hyper-technical approach to reject the

application filed by the defendants for acceptance of

the written statement. The Court below completely

misinterpreted the provisions under Order III Rule 4

and Order VI Rule 14 to hold that the same were

violated as the advocate identifying one of the

defendants in the affidavit appended to the written

statement was not authorized by them to act as

counsel in the suit. This, according to Mr. Rao, is

entirely erroneous because firstly, a Vakalatnama had

been executed by the defendants in favour of the said

advocate and secondly, even assuming he was not so

empowered, fact remains that he had merely identified

one of the defendants before the Notary Public in the

affidavit. Mr. Rao concludes his argument by

submitting that by adopting such technical approach,

the cause of justice has been defeated.

5. Mr.P.K.Rath, learned Senior Counsel, on the

other hand, would argue that the provisions under

Order III Rule 4 as well Order VI Rule 14 are required

to be strictly complied with. He submits, Rule 4 begins

with a negative injunction to the effect that 'no pleader

shall act for any person in any Court unless he has

been appointed for the purpose.' In the affidavit

appended to the written statement one Somanath

Sahu, advocate has identified Defendant No.1 but he

was not authorized by the defendants to appear for

them in the suit. Further, the advocate is required to

give a certificate that the contents of the written

statement have been read over and explained to the

defendants and accordingly he identified them.

Advocate Somanath Sahu has merely given a certificate

below the affidavit regarding typing of the written

statement in thick papers, which he was not

competent to do.

6. Admittedly, the written statement of Defendants

1 to 4 was not filed within the stipulated time of 90

days as provided under Order VIII Rule 1 of C.P.C. As

such, the written statement was filed along with an

application for its acceptance. The grounds urged in

the application for acceptance of the written statement

do not appear to have been considered at all by the

court below as is evident from perusal of the impugned

order. The application was rejected mainly on the

ground that Vakalatnama was filed on behalf of

Defendant Nos.1 to 4 on three occasions. On the first

occasion, Vakalatnama empowering Advocate

R.K.Padhi and others was filed on 30.11.22. On

24.1.2023, Defendant No.1-Satyanarayan Sahu filed

Vakalatnama appointing Advocate Somanath Sahu,

R.K.Padhi and others. Again on 26.2.2023, the

defendants filed Vakalatnama appointing Advocates

Somanath Sahu, R.K.Padhi and others as their

counsel. The application was filed on 20.1.2023. The

court below has taken objection to the fact that as on

that date, Somanath Sahu was not authorized to act as

counsel for the defendants. Much has been argued

with regard to the provision under Order III, Rule 4 of

C.P.C. in this regard, which is reproduced herein

below;

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 recognised agent or by some other person duly authorised 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.

Explanation. --For the purposes of this sub-rule, the following shall be deemed to be proceedings in the suit,--

(a) an application for the review of decree or order in the suit,

(b) an application under section 144 or under section 152 of this Code, in relation to any decree or order made in the suit,

(c) an appeal from any decree or order in the suit, and

(d) any application or act for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or of obtaining refund of moneys paid into the Court in connection with the suit.

(3) Nothing in sub-rule (2) shall be construed--

(a) as extending, as between the pleader and his client, the duration for which the pleader is engaged, or

(b) as authorising service on the pleader of any notice or document issued by any Court other than the Court for which the pleader was engaged, except where such service was expressly agreed to by the client in the document referred to in sub-rule (1).

(4) The High Court may, by general order, direct that, where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the order. (5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in court a memorandum of appearance signed by himself and stating--

(a) the names of the parties to the suit,

(b) the name of the party for whom he appears, and

(c) the name of the person by whom he is authorised to appear: Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party;

Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party.

ORISSA HIGH COURT AMENDMENT

Sub-rule (6) to Rule 4 added as follows:

"No pleader shall be entitled to make any application, or do any appearance, or act for any person unless he presents an appointment in writing duly signed by such person or his recognised agent or by some other agents duly authorised by power of attorney to act on his behalf or unless he is instructed by an attorney or pleader duly authorised so as to act on behalf of such person"- (25.5.1984)."

7. There is no dispute with regard to the principle

embodied in the provision quoted above that a pleader

cannot act for any person in any Court unless he is

duly authorized by such person to do so. This

authorization is obviously intended for the Court

proceeding. This is clearly distinct and separate from

identifying a person in an affidavit. While Order VI

Rule 14(4) of C.P.C. requires that the pleadings of the

parties shall be accompanied by an affidavit in support

thereof, the same, per se, cannot be read into the

provision under Order III Rule 4 of C.P.C. In other

words, the expression 'no pleader shall act for any

person in any Court' is different from the act of

identifying the person swearing the affidavit. Be it

noted that the affidavit itself is not sworn before the

Court but before a Commissioner of Oaths (Notary

Public) authorized in law for the purpose. In the

instant case, the affidavit was sworn before the Notary

Public at Cuttack whereas the suit was pending in the

Court at Titilagarh. This is a common and valid

practice accepted by all Courts. Further, the person

swearing an affidavit before the Notary Public requires

to be identified and any person competent to do so can

identify the executant. In the instant case, Advocate

Somanath Sahu has identified the Defendant No.1 who

has sworn the affidavit. This Court is of the considered

view that for such purpose only the advocate is not

required to be specially authorized by the executant by

a Vakalatnama. Furthermore, the affidavit can be

sworn at any place without any restriction. It would

therefore be too much to demand that only an advocate

holding power on behalf of the executant in the case is

competent to identify him wherever the affidavit may

be sworn. The court below appears to have

misconstrued the requirements of Order III Rule 4 of

C.P.C.

8. Coming to the verification of the written

statement, this Court finds that all the defendants

have jointly verified the written statement which is as

per Order VI Rule 15 of C.P.C. Further, all the

defendants have signed on each page of the written

statement, which is in consonance with the provision

under Order VI, Rule 14 of C.P.C. This Court

therefore, fails to understand as to how the

aforementioned provisions were held to be not

complied with.

9. Even assuming that there was some defect in

the verification of the affidavit, the same is obviously a

curable defect, which can be rectified. This is the

settled position of law. Reference in this regard may be

had to the judgment of this Court in the case of Bhalu

Naik vs. Hemo Naikani; 35(1969) C.L.T. 532. It is

well settled that procedure is the handmaid of justice.

In the words of Justice V.R. Krishna Iyer in his

celebrated judgment in the case of State of Punjab v.

Shamlal Murari; AIR 1976 SC 1177:

"We must always remember that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, though procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the

case, court should not enthrone a regulatory requirement into a dominant desideratum. After all, courts are to do justice, not to wreck this end product on technicalities.

Viewed in this perspective, even what is regarded as mandatory traditionally may, perhaps, have to be moderated into wholesome directions to be complied within time or in extended time."

10. If the court below was of the view that the

defendants were not properly represented by the

counsel, opportunity ought to have been granted to

them to remedy the defect instead of rejecting their

application at the threshold on technical grounds. As

was rightly argued by Mr. S.S.Rao, learned Senior

counsel, in the process, the cause of justice has been

defeated inasmuch as the written statement of the

defendants, which forms the bedrock of their defence,

has been thrown out.

11. For the foregoing reasons therefore, this Court is

of the considered view that the impugned order cannot