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1970 Supreme(P&H) 184
PUNJAB & HARYANA HIGH COURT
H.R.Sodhi, J.
Pat Ram, Etc.
Versus
Ekam Singh, Etc.
Civil Regular Second Appeal No. 773 of 1970,
Decided On : NOVEMBER 3, 1970
A pleader can only act for a party if he is appointed by a document in writing signed by the person appointing him or by his recognized agent or by any other person duly authorized to make such an appointment.
Headnote:
CIVIL PROCEDURE CODE - ORDER 41 RULE 1 AND ORDER 3 RULE 4 - PRESENTATION OF APPEAL - AUTHORITY OF PLEADER - VALIDITY OF APPEAL - EXTENSION OF TIME UNDER SECTION 5 OF THE LIMITATION ACT - DISCRETION OF COURT.
Fact of the Case:
The appellants filed appeals through their counsel, Shri Kathuria, who did not hold a valid power of attorney from them at the time of filing. The District Judge dismissed the appeals as incompetent. The appellants sought extension of time under Section 5 of the Limitation Act, claiming a bona fide mistake.
Finding of the Court:
The Court held that the appeals were not properly presented as Shri Kathuria did not have a valid authority from the appellants. The Court also held that the District Judge was justified in refusing to exercise his discretion under Section 5 of the Limitation Act as the mistake on the part of the counsel was not bona fide.
Issues: 1. Whether the appeals were properly presented? 2. Whether the District Judge erred in refusing to exercise discretion under Section 5 of the Limitation Act?
Ratio Decidendi: 1. Order 41 Rule 1 and Order 3 Rule 4 of the Civil Procedure Code provide the manner in which a pleader can be appointed for presenting a plaint or an appeal. The existence of an authority in writing and the filing of the same with the memorandum of appeal are two distinct and separate matters. 2. The mistake on the part of the counsel was not bona fide and the District Judge was justified in refusing to exercise his discretion under Section 5.
Final Decision: The appeals were dismissed as incompetent and the appellants were left to bear their own costs.
H.R.Sodhi, J.
1. This judgment Will dispose of the other connected Regular Second Appeal No. 818 of 1970 as well in which the same questions of law are involved.
2. Smt. Kishani Bai sold the suit land as per registered sale-deed dated 16th February, 1970 to the defendants respondents for an ostensible consideration of Rs. 6,000/-. Sardara son of Chatra filed a suit for possession by preemption on the ground that he was a tenant on the suit land under the vendor at the time of sale and that defendants vendees were strangers. This suit was filed at Hissar in the Court of the Senior Subordinate Judge. It was later transferred by the District Judge to a Civil Court at Fatehabad. During pendency of the suit Fatehabad, Pat Ram one of the sons of Sardara made an application on 31st January, 1969, for being impleaded along with his brothers as plaintiffs. It was stated by him that Sardara had died. The application of Pat Ram was resisted and another one was filed by Smt. Kesar and Ram Devi claiming that they were also legal heirs of Sardara deceased along with Pat Ram and others.
3. After hearing arguments of both the parties the trial Court dismissed the suit as having abated holding that the right to sue did not survive. The other suit filed by Sardara deceased claiming possession by pre-emption of another piece of land sold by Motan Dass, Vir Bhan and Hukam Chand vide registered sale-deed dated 16th February, 1968, for an ostensible consideration of Rs. 15,000/- was also similarly dismissed.
4. It may be mentioned at this stage that the suit at Hissar had been filed by Sardara deceased through Shri R.P. Kathuria, a local Advocate, and at Fatehabad the plaintiff engaged another Advocate, Shri Parma Nand Mehta, who afterward held a power of attorney form Pat Ram Mani Ram and Ram Rikh, sons of the deceased as well.
5. Two appeals arising out of the two suits were filed and the District Judge dismissed both of them by the judgment under appeal.
6. Each of the appeals on behalf of the plaintiffs was presented in the Court of District Judge by Shri R.P. Kathuria. The memorandum of appeal was signed by him. There is a thumb-impression appearing on the memorandum but no indications are available as to whose thumb-impressions it is. No power of attorney on behalf of the appellants was filed by the counsel and a note was made to the effect the same was on the original file. This was patently incorrect as Shri Kathuria never held any power of attorney from Pat Ram and his brothers and he was only engaged by their deceased father when the case was at Hissar. Shri Mehta, of course, did hold a power of attorney from Pat Ram and other sons of Sardara deceased, original plaintiff but the appeal was not presented by him. At the time of hearing of the appeals, an objection was taken by the respondents that the appellants were not competent as they had not been presented by a duly authorised agent therefore, merited dismissal. Applications for extension of time under Section 5 of the Limitation Act were also made on 24th January, 1970, through another counsel Shri Jassa Ram. It was stated therein that the power of attorney could not be filed through a bona fide mistake on the part of the appellants and also on the part of the counsel who believed that since the power of attorney had earlier been given to Sarvshri R.P. Kathuria and Parma Nand Mehta, no further authority was necessary. It was stated by Shri Kathuria in an affidavit that he bona fide believed that the power of attorney was on the record and that it was only on 20th December, 1969, that they learned that no such authority was with the memorandum of appeal. The District Judge was of the view that appeals had not been presented by a duly authorised agent on behalf of the plaintiffs since Shri Kathuria held no power of attorney from them at the time of filing of the appeals. He did not, therefore, go into the merits and dismissed the appeals as incompetent. The request for extension
