2005 Supreme(SC) 1465

2005(7) Supreme 754
Supreme Court of India
(From Patna High Court)
Mrs. Ruma Pal, Dr. AR. Lakshmanan & R.V. Raveendran, JJ.
Uday Shankar Triyar —Appellant
versus
Ram Kalewar Prasad Singh & Anr. —Respondents
Civil Appeal No. 6701 of 2005
(Arising out of SLP (C) No. 22578 of 2003)
Decided on 10-11-2005
Counsel for the Parties :
For the Appellant : Sunil Kumar, Sr. Advocate, A.P. Sahay, Ms. Anita Kanungo and Mrs. Sarla Chandra, Advocates.
For the Respondents : K.V. Mohan, Advocate.

Important point
Any defect in signing the memorandum of appeal or any defect in authority of person signing the memo of appeal or omission to file vakalatnama executed by appellant along with appeal will not invalidate memo of appeal if such omission or defect is not deliberate.

Headnote:Civil Procedure Code, 1908—Order 41 Rule 1, Order 6 Rule 14 and Order 3 Rule 4(2)—Any defect in signing of appeal or any defect in authority of person signing the memo of appeal or omission to file vakalatnama executed by appellant along with appeal will not invalidate memo of appeal if omission or defect was not deliberate—Such omission or defect can subsequently be corrected—Eviction petition filed by appellant and one of the grounds were that tenant “A” inducted in personal capacity had sub let portion of suit premises to DCC (District Congress Committee) of which “A” was then President—Suit was decreed by trial Court—Appeal was filed both by “A” and DCC which was shown being represented by its former President—During pendency of appeal “A” died and no legal heir got substituted—Respondent claiming to be “Working President” of DCC filed application to delete “A” and show DCC as sole appellant and to substitute words “Working President” in place of “former President” as person representing DCC—Appellate Court dismissed the application—High Court in appeal allowed the application—Appeal—Whether defect in appeal could be permitted to be rectified? Yes.

       Held : It is, thus, now well-settled 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;

       We will now examine the facts of this case with reference to the aforesaid principles. A.N. Singh and DCC (by its President A.N. Singh) were the defendants in the eviction suit and they were represented in the trial court by their counsel Shri Bindeshwar Prasad Singh and his colleagues. The cause-title of the memorandum of appeal against the eviction suit shows that there were two appellants - A.N. Singh and DCC. It is evident from the subsequent application for substitution that DCC was aware of the filing of the appeal. The memorandum of appeal was signed by Shri Umesh Chandra Kumar, Advocate, colleague of Shri Bindeshwar Prasad Singh. It was accompanied by a vakalatnama executed by A.N. Singh in favour of Shri Bindeshwar Prasad Singh and his colleagues including Shri Umesh Chandra Kumar. The office report on examination of the memorandum of appeal did not refer to any defect relating to absence of any vakalatnama by DCC. It is apparent that the appellants’ counsel and the District Court office proceeded on the basis that A.N. Singh was representing himself and the DCC as its former President. Only when A.N. Singh died and the working President of DCC filed an application for deletion of appellant No.1 (A.N. Singh) and for amendment of the description of appellant No.2 by substitution of the words ‘Working President’ for ‘Former President” as the person representing DCC, an objection was raised alleging improper presentation. In the circumstances, the appellate court ought to have accepted the application for amendment and substitution filed on behalf of DCC. (Paras 15 to 18)