Case: Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh

Singh) and for amendment of the description of appellant No.2 by substitution of the words Working President for Former President as the person representing DCC, an objection was raised alleging improper presentation. In the circumstances, the appellate court ought to have accepted the application for amendment and substitution filed on behalf of DCC. 19. Another aspect requires to be noticed. When A.N. Singh ceased to be the President, it is true that in the normal course, he could not have represented DCC as its former President. But it was possible for A.N. Singh to represent DCC as its former President, if there was a resolution by DCC expressly authorizing him to represent it in the appeal. It is also possible that in the absence of a new President, A.N. Singh continued to an on the assumption that he was entitled to represent DCC. As no objection was raised during the lifetime of A.N. Singh, his explanation is not available as to why he chose to represent DCC in the appeal, as it former President. Neither the office of the appellate court, nor the landlord-respondent having raised this issue and the Vakalatnama signed by A.N. Singh having been received and impliedly accepted by the appellate Court as validly executed by the appellants, the landlords objection to the application for substitution ought to have been rejected by the appellate court. At all events, if the representation was found to be defective or non-existent, the appellate court ought to have granted an opportunity to the second appellant - DCC, to rectify the defect. 20. There is yet another reason to hold that the appeal by DCC against the eviction decree was validly filed. DCC was represented by Shri Bindeshwar Prasad Singh and his collagues in the trial court. The same counsel filed the appeal. The Vakalatnama granted by DCC in favour of the said counsel in the trial court was sufficient authorization to the said counsel to file the appeal having regard to Order 3 Rule 4(2) CPC read with Explanation (c), even without a separate vakalatnama for the appeal. 21. We may at this juncture digress and express our concern in regard to the manner in which defective Vakalatnamas are routinely filed in courts. Vakalatnama, a species of Power of Attorney, is an important document, which enables and authorizes the pleader appearing for a litigant to do several acts as an Agent, which are binding on the litigant who is the principal. It is a document which creates the special relationship between the lawyer an the client. It regulates and governs the extent of delegation of authority to the pleaders and the terms and conditions governing such delegation. It should, therefore, be properly filled / attested / accepted with care and caution. Obtaining the signature of the litigant on blank Vakalatnamas and filling them subsequently should be avoided. We may take judicial notice of the following defects routinely found in Vakalatnamas filed in courts :- (a) Failure to mention the names of the persons/ executing the Vakalatnama, and leaving the relevant column blank; (b) Failure to disclose the name, designation or authority of the person executing the Vakalatnama on behalf of the grantor (where the Vakalatanama is signed on behalf of a company, society or body) by either affixing a seal or by mentioning the name and designation below the signature of the executant (and failure to annex a copy of such authority with the Vakalatnama). (c) Failure on the part of the pleader in whose favour the Vakalatnama is executed, to sign it in token of its acceptance. (d) Failure to identify the person executing the Vakalatnama or failure to certify that the pleader has satisfied himself about the due execution of the Vakalatnama. (e) Failure to mention the address of the pleader for purpose of service (in particular in cases of outstation counsel). (f) Where the Vakalatnama is executed by someone for self and on behalf of someone else, failure to mention the fact that it is being so executed. For example, when a father and the minor children are parties, invariably there is a single signature of the father alone in the Vakalatnama without any endorsement/ statement that the signature is for self and as guardian of his minor children. Similarly, where a firm and its partner, or a company and its Director, or a Trust and its trustee, or an organisation and its of office-bearer, execute a Vakalatnama, invariably there will be only one signature without even an endorsement that the signature is both in her/ her personal capacity and as the person authorized to sign on behalf of the corporate body / firm/ society / orgnisation. (g) Where the Vakalatnama is executed by a power of attorney holder of a party, failure to disclose that it is being executed by an Attorney-holder and failure to annex a copy of the power of attorney. (h) Where several persons sign a single vakalatnama, failure to affix the signature seriatim, without mentioning their serial numbers or names in brackets. (Many a time it is not possible to know who have signed the Vakalatnama where the signatures are illegible scrawls); (i) Pleaders engaged by a client, in turn, executing vakalatnamas in favour of other pleaders for appearing in the same matter or for filing an appeal or revision. (It is not uncommon in some areas for mofussil lawyers to obtain signature of a litigant on a vakalatnama and come to the seat of of the High Court, and engage a pleader for appearance in a higher court and execute a Vakalatnama in favour of such pleader). We have referred to the above routine defects, as Registries/Offices do not verify the Vakalatnamas with the care and caution they deserve. Such failure many a time leads to avoidable complications at later stages, as in the present case. The need to issue appropriate instructions to the Registries / Offices to properly check and verify the Vakalatnamas filed requires emphasis. Be that as it may.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]14. In so far as the decision in Sheikh Palat (supra) relied on by the appellant-landlord, we find that the said decision is not of much assistance to the appellant as the decision itself clarifies that it may not be necessary to file a Vakalatnama with the petition of appeal, but it is certainly necessary that there should be at the time of presentation of the appeal, a Vakalatnama in existence bearing the signature of the appellant or his attorney15. 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 memorandum of appeal, if such omission or defect is not deliberate and the signing of the Appeal memorandum or the presentation thereof before the appellate court was with the knowledge and authority of the appellant. Such omission or defect being one relatable to procedure, it can subsequently be corrected. It is the duty of the Office to verify whether the memorandum of appeal was signed by the appellant or his authorized agent or pleader holding appropriate vakalatnama. If the Office does not point out such defect and the appeal is accepted and proceeded with, it cannot be rejected at the hearing of the appeal merely by reason of such defect, without giving an opportunity to the appellant to rectify it. 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 furnishing the vakalatnama. It should also be kept in view that 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, as the Vakalatnama in his favour filed in the trial court will be sufficient authority to sign and present the memorandum of appeal having regard to Rule 4(2) of Order 3 CPC, read with Explanation [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 office18. We will now examine the facts of this case with reference to the aforesaid principles A. N. Singh and DCC (by its President A.N. Singh) were the defendants in the eviction suit and they were represented in the trial court by their counsel Shri Bindeshwar Prasad Singh and his colleagues. The cause-title of the memorandum of appeal against the eviction suit shows that there were two appellants-A.N. Singh and DCC. It is evident from the subsequent application for substitution that DCC was aware of the filing of the appeal. The memorandum of appeal was signed by Shri Umesh Chandra Kumar, Advocate, colleague of Shri Bindeshwar Prasad Singh. It was accompanied by a vakalatnama executed by A.N. Singh in favour of Shri Bindeshwar Prasad Singh and his colleagues including Shri Umesh Chandra Kumar. The office report on examination of the memorandum of appeal did not refer to any defect relating to absence of any vakalatnama by DCC. It is apparent that the appellants counsel and the District Court office proceeded on the basis that A.N. Singh was representing himself and the DCC as its former President. Only when A.N. Singh died and the working President of DCC filed an application for deletion of appellant No.1 (A.N. Singh) and for amendment of the description of appellant No.2 by substitution of the words Working President for Former President as the person representing DCC, an objection was raised alleging improper presentation. In the circumstances, the appellate court ought to have accepted the application for amendment and substitution filed on behalf of DCC19. Another aspect requires to be noticed. When A.N. Singh ceased to be the President, it is true that in the normal course, he could not have represented DCC as its former President. But it was possible for A.N. Singh to represent DCC as its former President, if there was a resolution by DCC expressly authorizing him to represent it in the appeal. It is also possible that in the absence of a new President, A.N. Singh continued to an on the assumption that he was entitled to represent DCC. As no objection was raised during the lifetime of A.N. Singh, his explanation is not available as to why he chose to represent DCC in the appeal, as it former President. Neither the office of the appellate court, nor the landlord-respondent having raised this issue and the Vakalatnama signed by A.N. Singh having been received and impliedly accepted by the appellate Court as validly executed by the appellants, the landlords objection to the application for substitution ought to have been rejected by the appellate court. At all events, if the representation was found to be defective or non-existent, the appellate court ought to have granted an opportunity to the second appellant - DCC, to rectify the defect20. There is yet another reason to hold that the appeal by DCC against the eviction decree was validly filed. DCC was represented by Shri Bindeshwar Prasad Singh and his collagues in the trial court. The same counsel filed the appeal. The Vakalatnama granted by DCC in favour of the said counsel in the trial court was sufficient authorization to the said counsel to file the appeal having regard to Order 3 Rule 4(2) CPC read with Explanation (c), even without a separate vakalatnama for the appeal21. We may at this juncture digress and express our concern in regard to the manner in which defective Vakalatnamas are routinely filed in courts. Vakalatnama, a species of Power of Attorney, is an important document, which enables and authorizes the pleader appearing for a litigant to do several acts as an Agent, which are binding on the litigant who is the principal. It is a document which creates the special relationship between the lawyer an the client. It regulates and governs the extent of delegation of authority to the pleaders and the terms and conditions governing such delegation. It should, therefore, be properly filled / attested / accepted with care and caution. Obtaining the signature of the litigant on blank Vakalatnamas and filling them subsequently should be avoided. We may take judicial notice of the following defects routinely found in Vakalatnamas filed in courts :-(a) Failure to mention the names of the persons/ executing the Vakalatnama, and leaving the relevant column blank;(b) Failure to disclose the name, designation or authority of the person executing the Vakalatnama on behalf of the grantor (where the Vakalatanama is signed on behalf of a company, society or body) by either affixing a seal or by mentioning the name and designation below the signature of the executant (and failure to annex a copy of such authority with the Vakalatnama)(c) Failure on the part of the pleader in whose favour the Vakalatnama is executed, to sign it in token of its acceptance(d) Failure to identify the person executing the Vakalatnama or failure to certify that the pleader has satisfied himself about the due execution of the Vakalatnama(e) Failure to mention the address of the pleader for purpose of service (in particular in cases of outstation counsel)(f) Where the Vakalatnama is executed by someone for self and on behalf of someone else, failure to mention the fact that it is being so executed. For example, when a father and the minor children are parties, invariably there is a single signature of the father alone in the Vakalatnama without any endorsement/ statement that the signature is for self and as guardian of his minor children. Similarly, where a firm and its partner, or a company and its Director, or a Trust and its trustee, or an organisation and its of office-bearer, execute a Vakalatnama, invariably there will be only one signature without even an endorsement that the signature is both in her/ her personal capacity and as the person authorized to sign on behalf of the corporate body / firm/ society / orgnisation(g) Where the Vakalatnama is executed by a power of attorney holder of a party, failure to disclose that it is being executed by an Attorney-holder and failure to annex a copy of the power of attorney(h) Where several persons sign a single vakalatnama, failure to affix the signature seriatim, without mentioning their serial numbers or names in brackets. (Many a time it is not possible to know who have signed the Vakalatnama where the signatures are illegible scrawls);(i) Pleaders engaged by a client, in turn, executing vakalatnamas in favour of other pleaders for appearing in the same matter or for filing an appeal or revision. (It is not uncommon in some areas for mofussil lawyers to obtain signature of a litigant on a vakalatnama and come to the seat of of the High Court, and engage a pleader for appearance in a higher court and execute a Vakalatnama in favour of such pleader)We have referred to the above routine defects, as Registries/Offices do not verify the Vakalatnamas with the care and caution they deserve. Such failure many a time leads to avoidable complications at later stages, as in the present case. The need to issue appropriate instructions to the Registries / Offices to properly check and verify the Vakalatnamas filed requires emphasis. Be that as it may