February 8, 2023

What would be the consequence if Vakalatnama is not filed with appeal memo?

The Supreme Court of India, discussed this point in the case of ‘Uday Shankar Triyar vs Ram Kalewar Prasad Singh [2005]’.  To understand the point clearly, we may discuss a brief background of the case.

Back Story

This was the case of eviction. An eviction suit was filed against A.N. Ray and District Congress Committee (DCC), Samastipur, on the following three grounds:

(i) that the suit premises (house) was let out to A. N. Singh for his personal residential occupation and the said A.N. Singh had unauthorisedly sub-let a portion of the suit premises to DCC;

(ii) that A.N. Singh had committed default in paying the rent and electricity charges; and

(iii) that the suit premises was required for his personal use.

The trial Court

The trial court decreed the suit by directing eviction and payment of arrears of rent and electricity charges. It held that A.N. Singh took the premises on rent in his personal capacity and not on behalf of DCC; and that a portion of the suit premises was sub-let to DCC without the consent of the landlord.

First appeal

Feeling aggrieved, A.N. Singh and DCC filed Eviction Appeal to Additional District Judge, Samastipur. In the memorandum of appeal, the second appellant DCC was shown as being represented by its ‘former President’. On an application made by the appellants, the Appellate Court granted stay of eviction.

During the pendency of the appeal, the first appellant (A.N. Singh) died. 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 first appellant and show DCC as the sole appellant and also to substitute the words ‘Working President’ in place of ‘former President’ as the person representing DCC.

On hearing the said application for substitution, the learned Additional District Judge dismissed the appeal. He found that even though A.N. Singh and DCC were arrayed as appellant Nos. 1 and 2 respectively, the Vakalatnama accompanying the memorandum of appeal was signed only by A.N. Singh and no Vakalatnama had been filed on behalf of DCC. He, therefore, rejected the request of Ram Kalewar Prasad Singh for substitution on the following reasoning: –

“Appellant No. 1 died on 23.8.2000 and his legal heir has not come for substitution and as such appeal has abated as against appellant no. 1; and no appeal was filed on behalf of District Congress Committee (I), Samastipur and present appeal on behalf of appellant no. 2 is nullity in the eye of law and hence liable to be dismissed. Accordingly, the entire appeal is dismissed.”

In High Court

Against this, an appeal was filed in Patna High Court, the High Court reasoned that the appeal against the eviction decree had been filed both by A.N. Singh and DCC which was a separate juristic person (described accordingly in the plaint by the landlord); that while it was true that a former President could not represent DCC in the appeal and DCC had not granted a Vakalatnama, neither the landlord (respondent in the said appeal) nor the Office had raised any such objection; and that as the juristic person (DCC) was already on record, the person entitled to represent such juristic person ought to have been permitted to come on record, and thus rectify the defect relating to improper representation.

The High Court, therefore, permitted DCC represented by its ‘Working President’ to come on record and pursue the appeal before the appellate court.

In Supreme Court

The said order of the High Court was challenged contending that the High Court has failed to note that there was no ‘appeal’ by DCC before the District Court, in the eye of law, for two reasons.

Firstly, though DCC was arrayed as the second appellant in the memorandum of appeal, it was shown as represented by its ‘former President’, and a former President could not represent DCC.

Secondly, the Vakalatnama in favour of the pleader was executed only by A.N. Singh and not by DCC. It is submitted that the appeal was, therefore, in effect, only by A.N. Singh, and as his L.Rs. did not come on record on his death, the appeal abated.

On the other hand, counsel for the respondents submitted that the order of the High Court did not suffer from any error. He pointed out by the time the appeal against the eviction decree was filed, A.N.Singh had ceased to be its President, but as he had represented DCC in the suit, the appeal was filed by A.N. Singh on behalf of himself and on behalf of DCC as its former President.

It was submitted that DCC being represented in the appeal by a ‘former President’ was also a curable defect. It is contended that if either the landlord or the office had pointed out the said defect/omission, it would have been rectified immediately; and, therefore, the application filed by the working President for substitution was rightly allowed by the High Court.

Questions arose in the case

Two questions, therefore, arise for our consideration:

(i) whether the appeal by DCC against the eviction decree was defective or invalid and

(ii) whether such defect could be permitted to be rectified?

Analysis by Supreme Court

Order 41 Rule 1 CPC requires every appeal to be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the court or to such officer as it appoints in that behalf.

Order 3 Rule 4 CPC deals with appointment of pleaders. Relevant portion thereof is extracted 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 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 the 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-

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

In Bihar State Electricity Board Vs. Bhowra Kankanee Collieries Ltd. [1984 (Supp.) SCC 597], Supreme Court considered a case where the Vakalatnama was not filed with the Appeal Memo. As the defect was not removed in spite of grant of an opportunity, the High Court dismissed the appeal as also the application for restoration. Supreme Court, while allowing the appeal against the said dismissal, held thus: –

“6. Undoubtedly, there is some negligence but when a substantive matter is dismissed on the ground of failure to comply with procedural directions, there is always some element of negligence involved in it because a vigilant litigant would not miss complying with procedural direction more so such a simple one as filing Vakalatnama. The question is whether the degree of negligence is so high as to bang the door of court to a suitor seeking justice. In other words, should an investigation of facts for rendering justice be peremptorily thwarted by some procedural lacuna?

It must also be borne in mind that the procedure was devised for doing justice and not for thwarting the same. In such a situation, civil courts have learned in favour of repairing the harassment, inconvenience or damage to the other side by some order of costs. But to take the view that failure to comply with an order for filing Vakalatnama would result in dismissal of the appeal involving a fairly good sum is to put such procedural requirement on a pedestal tall enough to hinder the course of justice. We find it difficult to be a party to this proposition. Hence we are inclined to interfere.”

The following dictum of Bowen L.J., in (1884) 26 Ch. D. 700 may be here referred to with advantage:

“The object of Courts is to decide the rights of parties and not to punish them for mistakes which they make in the conduct of their cases by deciding otherwise than in accordance with their rights … Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy.”

If therefore there was an inadvertent technical violation of the rule in consequence of a bona fide mistake, and the mistake is subsequently remedied the defect need not necessarily be fatal.”

Consequences of not filing Vakalatnama with memorandum of appeal

The court thus concluded in the present case, 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 Appeal memorandum 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, it 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 authorized 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 authorized 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 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.

An analogous provision is to be found in Order 6 Rule 14 CPC which requires that every pleading shall be signed by the party and his pleader, if any. Here again, it has always been recognized that if a plaint is not signed by the plaintiff or his duly authorized agent due to any bona fide error, the defect can be permitted to be rectified either by the trial court at any time before judgment, or even by the appellate court by permitting appropriate amendment, when such defect comes to its notice during hearing.

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 hand-maiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use.

The well recognized 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.

The decision in the case

The court dismissed the appeal filed against the order of High Court.

Reference

Uday Shankar Triyar v. Ram Kalewar Prasad Singh, (2005)