Point of Law: It well settled that any defect in signing memorandum of appeal or any defect in the authority of the person signing the memorandum of appeal, or omission to file vakalatnama executed by appellant, along with appeal, will not invalidate memorandum of appeal, if such omission or defect is not deliberate and signing of memorandum of appeal or presentation thereof before appellate court was with knowledge and authority of appellant.

JUDGMENT :

Vivek Chaudhary, J.

1. Present writ petition is filed by the petitioners challenging the order dated 13.11.1992 passed by the Vth Additional District Judge, Faizabad whereby the learned Additional District Judge has allowed the Revision no.85 of 1987 filed by the defendants.

2. Facts of the case are that in absence of the plaintiffs, the suit was dismissed on 30.5.1984. A restoration application was filed, which was numbered as Misc. Case No.30 of 1984. The same was also dismissed in default on 19.1.1985. On 21.1.1985, another recall application for recalling the order dated 19.1.1985 was filed which was numbered as Misc. Case No.12 of 1985. By an order dated 8.5.1987, the court below allowed the Misc. Case No.12 of 1985 and recalled the order dated 19.1.1985. Against the said order, a revision was filed. Objection raised in the revision was that Misc. Case No.12 of 1985 was not filed by the plaintiffs, but by Sri Mohd Haneef, Advocate, though he was not an advocate for the plaintiffs. Therefore, the recall application was not filed properly. The ground taken was that Sri Mohd. Haneef, Advocate had not signed the Vakalatnama for the plaintiffs. The said revision was opposed by the plaintiffs. The revisionists before the revisional court had relied upon the judgments reported in AIR 1931 Allahabad 767, Chheeta vs Musammat Maiko and others and AIR 1935 Allahabad 727 Official Receiver, Aligarh versus Hiralal and others. The respondents in revision had relied upon the judgments reported in AIR 1957 Andhra Pradesh 172, Mahela Salnarayanan vs Bamnoori Bank Someshya, AIR 1946 Bombay 174 Hira Lal and Gendalal versus Bhagirathi Ram Chander and Company, and 1949 ALJ 105 Kanhaiyalal versus Panchayati Akhada by Dharamdas.

3. Considering the facts and circumstances of the case, the court below held that since the Vakalatnama was signed only by the plaintiffs and not by Sri Mohd. Haneef, Advocate, therefore, Sri Mohd. Haneef, Advocate was not properly appointed as a lawyer and thus, it is an error which cannot be corrected and, therefore, the application was liable to be rejected. Against the said order, present writ petition is filed.

4. Learned counsel for the petitioners, in support of his submissions, has placed reliance upon a judgment of the Supreme Court in the case of Uday Shankar Triyar versus Ram Kalewar Prasad Singh 2006 (1) SCC 75. In the said case, against eviction order, two persons, namely, A.N. Singh and DCC (District Congress Committee) filed Eviction Appeal No.4 of 1998. During pendency of appeal, first appellant A.N. Singh died and 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 name of the first appellant and to show DCC as sole appellant. The said application for substitution was opposed by the landlord. On hearing the said substitution application, the learned Additional District Judge by order dated 27.4.2002 dismissed the appeal. He found that even though A.N. Singh and DCC were arrayed as appellant nos.1 and 2 respectively, Vakalatnama accompanying the memorandum of appeal was signed only by A.N. Singh and no Vakalatnama was filed on behalf of DCC. Therefore, the court held that appeal on behalf of appellant no.2-DCC is nullity in the eyes of law and is liable to be dismissed and is dismissed, as no legal heirs have come by substitution in place of appellant no.1. The said order was challenged before the high court and the high court had taken a different view and had found the appeal maintainable.

Thereafter, the matter went to Supreme Court and the Supreme Court in the said facts and circumstances of the case, held as follows:

“15. 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 m