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2024 Supreme(SC) 1098
SUPREME COURT OF INDIA
B.V. NAGARATHNA, NONGMEIKAPAM KOTISWAR SINGH, JJ.
BALJEET SINGH (DEAD) – APPELLANT
Versus
Pratap Singh (Dead) & Others – Respondents
Civil Appeal No. 2024 (@ SLP(C) No. 24280 of 2018)
Decided On : 20-11-2024
For the Petitioner(s): Mr. Ajit Singh Pundir, AOR Mr. Arijeet Singh, Adv.
For the Respondent(s): Mr. Praveen Swarup, AOR Mr. Ameet Siingh, Adv. Mr. Praveen Swarup, Adv. Ms. Pareena Swarup, Adv. Mr. Ravi Kumar, Adv. Mr. Ankit Ambasta, Adv. Mr. O.p. Harsh Singh Munday, Adv. Ms. Ritu Bala Puri, Adv.
Procedural irregularity by an advocate filing an affidavit does not justify dismissing an appeal on merits without offering a chance to rectify the error and hear the case substantively.
Headnote:(A) Advocates Act, 1961 - Section 30 - Professional misconduct - Filing of affidavit by advocate in support of stay application - Irregularity in procedure does not warrant dismissal of appeal on merits. (Para 9)
(B) Appeal - Scope and ambit - Dismissal of appeal without addressing merits due to procedural irregularity - High Court erred in not providing opportunity to rectify irregularity and hear the appeal on merits. (Para 14)
Facts of the case:
The respondents-plaintiffs filed a suit for specific performance against the original defendant, which was decreed by the Trial Court on 16.08.2011. The defendant’s appeal to the First Appellate Court was dismissed on 28.02.2017, leading to a Second Appeal before the High Court. The High Court dismissed the Second Appeal due to a procedural irregularity involving an affidavit filed by the advocate who had also handled the First Appeal.
Findings of Court:
The High Court erred in dismissing the Second Appeal without addressing its merits, despite identifying a procedural irregularity in the filing of an affidavit by the advocate. The irregularity should not have led to dismissal without an opportunity for rectification. (Para 14)
Issues: The primary issue was whether the procedural irregularity of an advocate filing an affidavit in support of a stay application justified the dismissal of the Second Appeal without a hearing on merits. (Para 14)
Ratio Decidendi: The court held that even if a procedural irregularity exists, such as an advocate filing an affidavit in support of a stay application, it does not justify dismissing an appeal on merits without providing an opportunity to rectify the error and hear the case substantively. (Para 14)
Result: The appeal is allowed and disposed of in the aforesaid terms. (Para 16)
ORDER
Application for setting aside the abatement by condoning the delay is allowed.
2. Application for bringing on record the legal representatives of appellant is allowed.
Application for deletion of the name of respondent No.1 from the array of the parties is disposed.
3. Leave granted.
4. Being aggrieved by the order dated 09.06.2017 passed by the High Court of Judicature at Allahabad in Second Appeal No.501/2017, the legal representatives of the deceased appellant-Baljeet Singh are now prosecuting this appeal.
5. Briefly stated, the facts are that the respondentsplaintiffs had filed a suit for specific performance against the original defendant-Baljeet Singh. The said suit was decreed by judgment and decree dated 16.08.2011. Being aggrieved by the said judgment and decree, the original defendant-Baljeet Singh preferred Civil Appeal before the First Appellate Court which was also dismissed by judgment and decree dated 28.02.2017. Hence, Baljeet Singh preferred Second Appeal No.501/2017 before the High Court.
6. In the Second Appeal, learned counsel for the respondents- plaintiffs took an objection to the fact that the stay of the impugned judgment and decree of the First Appellate Court as well as the Trial Court was sought by way of an application which had been supported by an affidavit which was signed by Sri Rohit Kumar Tyagi, the very counsel who had been engaged by the original appellant to file first appeal; that the said stay application could not have been verified and an affidavit could not have been filed before the High Court by the very advocate who had been engaged to file the said First Appeal.
7. In the circumstances, it was contended that the appeal filed before the High Court containing an affidavit in support of the application for stay signed by the learned counsel who had filed the First Appeal before the First Appellate Court was a serious irregularity and therefore, the Second Appeal was not maintainable.
8. In other words, the objection raised by the respondents- plaintiffs was that the application for stay filed in the Second Appeal which was supported by an affidavit by the learned counsel who filed the First Appeal on behalf of the original defendant was not just and proper inasmuch as the counsel could not have verified and filed such a supporting affidavit in the capacity of a pairokar.
9. On the basis of the said submissions, the High Court, relying on a judgment of this Court in Vinoy Kumar vs. State of UP & Ors. [(2001) 4 SCC 734] and on the basis of Section 30 of the Advocates Act, 1961 observed that an advocate, Sri Rohit Kumar Tyagi, could not have filed the affidavit in support of the application seeking stay before the High Court; that it amounted to a professional misconduct and therefore, while exonerating the said advocate, strangely dismissed the Second Appeal. Hence, this appeal.
10. We have heard learned counsel for the appellant and learned counsel for the respondents and perused the material on record.
11. During the course of submissions, appellant’s counsel submitted that the High Court seriously erred in dismissing the entire second appeal without going into the merits of the case merely because it found an irregularity on the part of the advocate who had filed the first appeal on behalf of the original defendant also filing an affidavit in support of the application seeking an interim stay of the impugned judgment of the First Appellate Court as well as the Trial Court along with the memorandum of Second Appeal filed before the High Court. He submitted that the High Court in fact exonerated the learned counsel who had committed the said irregularity while stating that it did not propose to refer the matter to the disciplinary committee of the State Bar Council and thereby virtually forgave the irregularity committed by the learned counsel. When that was so, strangely the High Court dismissed the Second Appeal. As a result, the High Court has not decided the Second Appeal on merits, whi
