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2007 Supreme(P&H) 2198
2008(1) LAW HERALD (P&H) 571
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Ajai Lamba
RSA No.1050 of 2006
Ravi Bala
v.
Satpal
{Decided on 18/12/2007}
For the Petitioner:Mr. S.S. Dinarpur, Advocate.
For the Respondent:Mr. Rakesh Kumar Sharma, Advocate.
IMPORTANT POINTS
Procedural defects and irregularities which are curable should not be allowed to defeat substantive right of a party.
Headnote:Vakalatnama given in favour of the counsel at the time of filing the plaint—The said Vakalatnama is sufficient authorization to the Counsel to file the appeal.
(A) Civil Procedure Code, 1908, Sections 96 and 100—Civil Procedure Code, 1908--Order 3, Rule 4--Appeal filed by power of attorney holder—Presentation of appeal—Technical objections—Procedural defects—Vakalatnama given at the time of filing of plaint by the appellant to the counsel—Sufficient authorization to the Counsel to file appeal—Ld. first appellate Court dismissed the appeal without considering on merits on the ground that the power of attorney holder of the appellant had not sought permission of the Court to appear, act and plead on behalf of the appellant—Procedural defects and irregularities which are curable should not be allowed to defeat substantive right of a party—Appeal allowed—Ld. First appellate Court is directed to decide the matter on merits—Held; Interalia- Procedure is a hand-maiden to justice and should never be made to a tool to deny justice or perpetuate injustice.
(B) Civil Procedure Code, 1908, Section 96—Vakalatnama—First appeal—Vakalatnama given in favour of the counsel at the time of filing the plaint—The said Vakalatnama is sufficient authorization to the Counsel to file the appeal. (Para 16)
Ajai Lamba, J.:- This regular second appeal has been filed by the plaintiff.
2. A suit for rendition of account of 750 popular trees which stood planted in the land located in village Gulab Nagar, Jagadhri, were allegedly cut, removed and sold by the defendant, was filed by the plaintiff. Further prayer therein is for recovery of the amount that may be found due and payable to the plaintiff on rendition of account. The suit has been dismissed.
3. The appellant carried an appeal.
4. During hearing of the appeal an objection was taken by the respondent-defendant that the appeal deserves to be dismissed on technical grounds as the same has neither been signed by the appellant nor her pleader. The signatures of Raghvinder Singhal, who has signed the memorandum of appeal on behalf of the plaintiff are not to be considered in law as no application has been filed to allow the appeal to be filed through power of attorney.
5. The first Appellate Court without considering on merits the issues involved in the suit, has dismissed the appeal. It has been held that Raghvinder Singhal had the power of attorney, however, because permission of the Court had not been sought to appear act and plead on behalf of the appellant, therefore, could not be recognised. The appeal had not been filed by the pleader, who, however, by virtue of vakalatnama earlier entrusted to him at the time of filing of the plaint was competent to do so.
6. Learned counsel appearing for the appellant has contended that right to appeal of the appellant has been denied on mere technicalities. It is not in dispute that appellant was represented by Sh.JS Deswal, Advocate. Issues have been framed and noticed in the impugned judgment, however, no findings thereupon have been returned. It is further contended that admittedly Sh. Raghvinder Singhal, had the power and authority and was the competent person to engage an Advocate, produce oral and documentary evidence in Court and was also authorised to file appeal against final order upto the Supreme Court of India. A reference has also been made to a judgment of Hon’ble Supreme Court of India in Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh and another, 2006(1)RCR (Civil) 18.
7. Learned counsel appearing for the respondent, however, has not addressed any arguments and has simply prayed for adjournment.
8. Service was complete as on 24.8.2007. Therefore, no ground for further adjournment in this appeal that relates to February 2006 is made out.
9. I have gone through the impugned judgment.
10. In Para 13 of the impugned judgment it has been noticed that vakalatnama was entrusted with Sh. JS Deswal, Advocate, when he appeared in the trial Court and filed the suit. The contents of the vakalatnama show that he was permitted by the appellant to sign and plead and present the appeal on her behalf.
11. The contents of the power or attorney in favour of Raghvinder Singhal have also been noticed in para-16 of the judgment. The reproduced portion shows that he was authorised to sign and verify plaints, applications, affidavits, proceedings engage advocate, produce oral and documentary evidence in Court and give a statement in the Court on behal of the appellant. He was also authorised to file appeal/revision of any interim order and final order upto the Supreme Court of India.
12. The First Appellant Court has not accepted the appeal as having been properly filed while holding that the memorandum of appeal had not been signed by Sh. JS Deswal, Advocate. With regard to the power of attorney holder i.e. Sh. Raghvinder Singhal it has been held under Order 3 Rule 1 and 2 of the Code of Civil Procedure, a party must file a petition before the Court concerned to seek permission to allow the power of attorney holder to appear and plead.
13. When the facts are collectively considered, I find that so as to cure the technical defects pointed out by learned counsel for respondent, an application had been filed on 11.6.2005 for acknowledging the
