C.R. No. 136 of 2011 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 136 of 2011 (O&M) Date of Decision: January 10, 2011 Mohinder Singh …..Petitioner Vs. Jagjit Singh @ Jeet Singh and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr.Sunil Chadha, Advocate for the petitioner. -.- M.M.S. BEDI, J. (ORAL) Vide impugned order, the lower appellate Court has allowed the application of the plaintiff- respondent for rectifying the act of filing the civil suit by his wife Smt.Kirpal Kaur, as his attorney. Counsel for the defendant- petitioner has argued that the lower Appellate Court has acted illegally in allowing the rectification as a specific objection had been raised by the defendant- petitioner in the written statement that Kirpal Kaur was not duly authorized attorney for the C.R. No. 136 of 2011 (O&M) [2] plaintiff- respondent. He has argued that while Jagjit Singh himself had appeared in the witness box and stated that he had not appointed Kirpal Kaur as his attorney to file the suit. The lower Appellate Court has observed that the curing of procedural irregularity at the stage of appeal would not cause any prejudice to the defendant - petitioner in view of the judgment of the Apex Court in Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh and another, 2006 (1) CCC 416. I have heard counsel for the petitioner at length and considered the arguments in the light of the circumstances existing in the present case. The plaintiff- respondent Jagjit Singh had himself appeared as a witness in his suit which was originally filed through his wife as his attorney. After the dismissal of his suit he has filed an appeal again through Inderjit Kaur alongwith a fresh power of attorney executed in her favour. The Apex Court in Uday Shankar Triyar’s case (supra) has laid down that non- compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a hand-maiden of justice, should never be made a tool to deny justice or perpetuate injustice, by the oppressive or punitive use. The Apex Court has further held that there are certain well recognized exceptions to this principle. One of the exceptions is that where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for C.R. No. 136 of 2011 (O&M) [3] rectifying it and another is where the non-compliance or violation is proved to be deliberate or mischievous. In the present case, when the plaintiff had himself appeared in the witness box to substantiate his pleadings and to prove his case, no doubt the objection regarding he having not filed the suit through proper attorney was raised but it was decided in his favour under issue No.4. The finding on issue No.4 is subject matter of the appeal also. The plaintiff- respondent chose to rectify the procedural defect by moving an application and by filing a fresh power of attorney executed by him in favour of his wife-Kirpal Kaur. It tentamounts to curing the defect which was pointed out in the pleadings. The act of the plaintiff- respondent cannot be said to be mischievous or deliberate and would also not cause any prejudice to the petitioner. No ground is made out for interfering in the impugned order. The revision petition is dismissed. Nothing mentioned in this order or in the order passed by the lower Appellate Court will prejudice the rights of the defendant- petitioner on merits during the final hearing of the appeal on all the issues. January 10, 2011 (M.M.S.BEDI) sanjay JUDGE