C.R. No. 1708 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 1708 of 2008 Date of Decision: July 23, 2009 Laj and others …..Petitioners Vs. Bhim Singh Saini and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr. Manoj Kumar Sood, Advocate for the petitioners. Mr.Kulbhushan Sharma, Advocate for the respondents. -.- M.M.S. BEDI, J. Petitioners have challenged the order dated March 10, 2008 (annexure P-3) passed by Additional District Judge, Faridabad, rejecting the memorandum of appeal and the application to bring on record the Legal Representatives of Kishan Chand (deceased). A decree for injunction was passed in favour of plaintiff- respondents and against Kishan Chand (now C.R. No. 1708 of 2008 [2] deceased), his sons, Laj, Mohan and Ishwar on August 9, 2007, by Civil Judge (Senior Division), Faridabad. Kishan Chand and petitioners No.1 to 3 engaged Mr.Amit Sain Aggarwal, Advocate as counsel to file the appeal. The appeal was prepared and Kishan Chand deceased on September 7, 2007 signed the memorandum of appeal alongwith Vakalatnama in favour of Mr.Amit Sain Aggarwal, Advocate. On the intervening night of September 7, 2007 and September 8, 2007, Kishan Chand died. Mr. Amit Sain Aggarwal, Advocate, filed appeal on September 8, 2007 morning on behalf of Kishan Chand and petitioners No.1 to 3 without knowing that Kishan Chand had died on the night intervening September 7, 2007 and September 8, 2007. When petitioners No.1 to 3 informed their counsel that their father had died on the intervening night of September 7, 2007 and September 8, 2007, he moved an application to bring on record the Legal Representatives of Kishan Chand. It is pertinent to mention that the petitioners besides being the legal heirs were also appellants in their individual capacity. An application dated October 17, 2007 was filed to bring on record the Legal Representatives of Kishan Chand. The Additional District Judge, Faridabad, vide order dated March 10,2008 rejected the memorandum of appeal as well as the application for brining on record the Legal Representatives of Kishan Chand, which reads as follows:- “Arguments heard on the maintainability of the appeal. It is evident from the statement of appellants No.2, 3, and 4 given in this court that they have not signed the memorandum of appeal as well as Vakalatnama dated C.R. No. 1708 of 2008 [3] 8.9.2007 in favour of Sh.Amit Sain Aggarwal, Advocate. Therefore, when the appeal has not been signed by appellants No.2, 3 and 4 or their counsel, then certainly, it is not maintainable as required under Order 41 Rule 1 CPC that every appeal has to be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the court. Here, reliance can be placed upon the authority Pat Ram etc. Versus Ekam Singh etc. 1971 Current Law Journal 1971 (P&H) 294. 2. It is pertinent to mention that copy of death certificate of appellant No.1 Kishan Chand filed with the application for impleading his LRs reveals that he had expired on 7.9.2007 whereas the present appeal has been filed on 8.9.2007. In these circumstances, the appeal by appellant No.1, a dead person, is also not maintainable. Although, learned counsel for the appellant No.2 has stressed that he be allowed to continue the present appeal in the capacity of LR of appellant No.1 but when the main appeal is not maintainable, then the application for impleading him as LR of deceased Kishan Chand- appellant No.1 is also not maintainable. Hence, the appeal is dismissed being not maintainable. 3. Before parting with the present order, when it has come to my notice that the memorandum of appeal was C.R. No. 1708 of 2008 [4] not signed by appellant No.2 to 4, then SHO, Police Station Central Faridabad, Sector 12, is directed to investigate into the case as to who and in what circumstances, the memorandum of appeal and vakalatnama were signed on behalf of appellant No.2 to 4, namely, Laj, Mohan and Ishwar sons of Kishan Chand, resident of Mohalla Sanian, Fatehpur Billoch, Tehsil Ballabgarh, District Faridabad and then to lodge FIR against the culprits and report to this court. A copy of this order be sent to SHO concerned for immediate action. Lower court record be also returned alongwith a copy of this order whereas appeal file be consigned to records after due compliance.” It has been contended by counsel for the petitioners that memorandum of appeal was filed on behalf of Kishan Chand, deceased and Laj Mohan and Ishwar. The memorandum of appeal was signed by Kishan Chand, deceased and by counsel for petitioners No.1 to 3 (as appellants No.2 to 4). Order 41 Rule 1 CPC requires that memorandum of appeal is to be signed by appellant or by his counsel. In the present case, the memorandum of appeal was signed by appellant No.1- Kishan Chand, deceased and by their counsel, appeal therefore, could not abate on death of Kishan Chand. The application for brining on record the Legal Representatives has been rejected as the right to sue still survives. C.R. No. 1708 of 2008 [5] A perusal of the impugned order indicates that the appeal has been dismissed as non-maintainable on the ground that Kishan Chand, appellant had expired on September 7, 2007 whereas the appeal filed by a dead person on September 8, 2007 is not maintainable. The trial Court formed an opinion that appeal had not been signed by appellants No.2, 3 and 4 as such the same could not be entertained as per the provisions of Order 41 Rule 1 CPC. The application for impleading of the Legal Representatives of Kishan Chand has been dismissed on the ground that since the memorandum of appeal has been held to be not maintainable, the application for impleading the Legal Representatives of deceased Kishan Chand will also not be maintainable. Another interesting feature of the impugned order is that the Additional District Judge has ordered that memorandum of appeal had been signed by appellants No.2 to 4, as there was a suspicion that memorandum of appeal and Vakalatnama had been signed on behalf of appellants No.2 to 4, namely, Laj, Mohan and Ishwar under suspicious circumstances, as such SHO of Police Station Central, Faridabad was directed to inspect and lodge FIR against the culprits with a report to the Court. The order passed by the Additional District Judge, Faridabad, dated March 10, 2008 is not only a harsh order but seems to have been passed on the basis of wrong interpretation of provisions of Order 41 Rule 1 CPC presuming that in case memorandum of appeal is not signed by appellant or his pleader, the appeal deserves to be automatically rejected. Had the judgment of Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh and another, 2005 AIR SCW 5851 been in the knowledge of C.R. No. 1708 of 2008 [6] Additional District Judge, the petitioners would have been saved from the consequences of the harsh order passed by the Judge. It was held in the said judgment that no doubt signing of the memorandum of appeal by the appellant or his pleader is mandatory under Order 41 Rule 1 CPC and order 3 Rule 4 CPC but these are procedural provisions and non-compliance of a procedural provisions does not entail automatic rejection of the appeal without giving an opportunity to rectify defect. It has been authoritatively laid down in the said judgment that procedural provisions should not be allowed to defeat substantive rights or to cause injustice. The operative part of the judgment reads as follows:- “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 the furnishing the vakalatnama. 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, Vakalatnama in C.R. No. 1708 of 2008 [7] his favour filed in the Trial Court will be sufficient authority to sign and present the memorandum of appeal having regard to R.4 (2) of O.3, CPC, read with Expln. (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……… 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.” C.R. No. 1708 of 2008 [8] In the said judgment, the Apex Court had taken judicial notice of the various defects which are, in routine found in vakalatnama filed in the Courts while laying down emphasis that vakalatnamas should be filled with care and caution. A general direction had been given to all the Registrars and offices to verify the vakalatnamas as defective vakalatnamas many a times lead to avoidable complications at later stages, but at the same time it was held that no doubt the signing of memorandum of appeal by appellant or his pleader duly authorized by vakalatnama executed by appellant is mandatory but it does not mean that non-compliance should result in automatic rejection of the appeal. Seen in context to the law laid down in Uday Shankar Triyar’s case (supra), the impugned order dated March 10, 2008 deserves to be set aside in order to give a fair opportunity to the Legal Representatives of Kishan Chand and other appellants to get a fair adjudication of the appeal on merits. It will not be out of place to observe here that the appeal which was filed on September 8, 2007 just one day after the death of Kishan Chand bears the signatures of Kishan Chand. By the time the memorandum of appeal was fixed for hearing on September 10, 2007, the counsel who had also signed memorandum of appeal did not have any knowledge regarding the death. It is not a case where any document purporting to have been signed after the death of Kishan Chand has been used by any one. Memorandum of appeal is required to be signed by the appellant or his pleader. Since the Advocate had signed the memorandum of appeal on the basis of power of attorney, the memorandum of appeal will not become a C.R. No. 1708 of 2008 [9] nullity with the death of Kishan Chand. In this context, under Order 22 Rule 2 (a) CPC applicable in Punjab, Haryana and Chandigarh, every Advocate appearing in a case, who becomes aware of death of a party to the litigation (whether he appeared for him or not), must give intimation about the death of that party to the Court and to the person who is dominus litus. In the present case, the memorandum of appeal has wrongly been held to be not maintainable on account of death of appellant Kishan Chand who had died after signing the memorandum of appeal and before date of hearing of the appeal. There is a patent procedural error on part of the Additional District Judge in passing an order to lodge FIR against appellants No.2 to 4, Laj, Mohan and Ishwar. The order of rejection of memorandum of appeal is hereby set aside and it is ordered that memorandum of appeal will be deemed to have been filed on September 8, 2007. The Appellate Court will reconsider the application of the Legal Representatives of Kishan Chand for impleadment as LRs. The District Judge is directed to entrust the appeal to another Additional District Judge for August 1, 2009. Parties have been directed to appear before the Court of District Judge, Faridabad, on the said date. Disposed of. July 23, 2009 (M.M.S.BEDI) sanjay JUDGE