Holding

Procedural defects like the absence of a vakalatnama are curable and do not invalidate an appeal; the High Court was correct in permitting rectification, so the appeal is dismissed.

Summary

The landlord filed an eviction suit against A.N. Singh and the District Congress Committee (DCC). Both appealed the eviction decree, but the appeal memorandum was signed only by A.N. Singh and was accompanied by a vakalatnama executed solely by him, with no separate vakalatnama for DCC. After A.N. Singh's death, the DCC sought to substitute its representation from the former President to the working President. The trial court dismissed the appeal on the ground of lack of a vakalatnama for DCC, but the Patna High Court set aside that dismissal, allowing DCC to rectify the defect. The Supreme Court examined whether the appeal was invalid due to the missing vakalatnama and whether such procedural defects could be cured. It held that omissions or defects in filing a vakalatnama are procedural and curable, and that a pleader who represented the party in the trial court need not file a fresh vakalatnama for the appeal. Consequently, the High Court's order was affirmed and the appeal dismissed.

Issues considered

Whether the appeal filed by DCC was defective or invalid for lack of a vakalatnama executed by DCC.
Whether a procedural defect such as omission of a vakalatnama can be rectified without invalidating the appeal.
Whether the appellate court must reject an appeal automatically for such defect or may allow amendment.

Legislation cited

Code of Civil Procedure, 1908s. Order 3 Rule 4, s. Order 41 Rule 1, s. Order 6 Rule 14, s. Section 151

Subjects

Vakalatnamaappealprocedural defectcurable defectCode of Civil ProcedureOrder 41Order 3Order 6representationeviction suit

Judgment

UDA Y SHANKAR TRIY AR A
v.
RAM KA LEW AR PRASAD SINGH AND ANR.

NOVEMBER I 0, 2005

[RUMA PAL, DR. AR. LAKSHMANAN AND R.Y. RAVEENDRAN,'JJ.J B

Code of Civil Procedure, 1908:
....' Order 41 Rule 1 and Order 6 Rule 14-0mission or defects in filing
Vakalatnama-Effect of-Held: Bona fide omission to file vakalatnama executed C
by client with the appeal, or defect in signing memorandum.of appeal or in
the authority of person signing it, does not render the appeal invalid-Such
omission or defect being procedural and curable can be subsequently corrected
and should not be allowed to perpetuate injustice-Further Registry/Offices
are under a duty to verifY the papers and if they fail, appeal cannot be D
rejected-When defect is noticed or pointed out, Court should permit the
client to rectifY it.

Order 3 Rule 4 and Order 41 Rule I-Appeal against decree by parties-
Execution ofvakalatnama in favour of pleader only by one party and not by
another in memorandum of appeal-Appeal, if defective or invalid-Held: E
When pleader signing the memorandum of appeal has represented the party
in trial court, vakalatnama by client in favour of pleader in trial court is
sufficient authorisation to the pleader to sign and present memorandum of
appeal, even without separate vakalatnama for the appeal-It will not render
the appeal invalld
F
Deeds and documents:

Vakalatnama-Significance of-Held: Vakalatnama is a species ofpower
of attorney enabling and authorizing pleader appearing for litigant to do
several acts binding on litigant-It creates special relationship between lawyer G
and client, thus should be properly filled/attested/accepted to avoid routine
defects.

Vakalatnama-Routine defects found while filing-Discussed

157 H
158 SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A AN, the President of District Congress Committee (DCC) took suit
premises for his personal residential occupation. Appellant-landlord filed
eviction suit against AN and DCC. Trial Court passed an eviction decree
in favour of the appellant. Both AN-appellant no. 1 and DCC-appellant
no.2 filed eviction appeal. In memorandum of appeal, DCC was shown as
B being represented by its 'former president'. During pendency, AN died
but his legal heirs did not come on record. R claiming to be 'Working
President' of DCC filed application to delete AN and show DCC as the
sole appellant and to substitute words 'working president in place of
'former presidrnt' as person representing DCC. Appellate Court dismissed
the appeal holding that the vakalatnama accompanying memorandum of
C appeal was signed only by AN and no vakalatnama was filed on behalf of
DCC. R and DCC challenged the order. High Court allowed the appeal
and permitted DCC represented by its 'Working President' to come on
record and pursue the appeal before the appellate court. Hence the present
appeal.

D Appellant-landlord contended that High Court failed to take note
that though DCC was arrayed as appellant no. 2 in the memorandum of
appeal, it was shown as represented by its 'former President', and a former
President could not represent DCC; and that the Vakalatnama in favour
of the pleader was executed only by AN and not by DCC and as such the
E appeal was, in effect, only by AN, which abated since his LRs. did not come
on record on his death.

Dismissing the appeal, the Court

HELD: 1.1. The requirement that the appeal preferred in the form
F of a memorandum should be signed by the appellant or his pleader (duly
authorized by a Vakalatnama executed by the appellant) as given under
Order 41 Rule 1 CPC 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. Any defect in signing
the memorandum of appeal or any defect in the authority of the person
G 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
H of the appellant. Such omission or defect being one relatable to procedure,
UDA Y SHAN KAR TRIYAR "· RAM KALEWAR PRASAD SINGH J 59

it can subsequently be corrected. It is the duty of the Office to verify A
whether the memorandum of appeal was signed by the appellant or his
authorized agent or pleader holding appropriate vakalatnama. 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 B
the 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. A11 analogous provision is found
in Order 6 Rule 14 of CPC. 1164-D; 167-C-E; 168-B)

1.2. It should also be kept in view that if the pleader signing the
c
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 (cl thereto. D
In such an event, a mere memo referring to the authority given to him in
the trial court 11}ay 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. 1167-G, H; 168-Al

1.3. Non-compliance with any procedural requirement relating to a E
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 to justice, should never be made a p
tool to deny justice or perpetuate injustice, by any oppressive or punitive
use. The well recognized exceptions to this principle are outlined.
[168-C-DI

Sheikh Pa/at v. Sarwan Sahu, (1920) 55 IC 271; Bihar State Electricity
Board v. Bhowra Kankanee Colleries ltd., (19841 Supp. SCC 597; Shastri G
Yagnapurushdasji and Ors. v. Muldas Bhundardas Vaishya and Anr. AIR
(1966) SC 1119 and Kodi Lal v. Ch. Ahmad Hasan, AIR (1945) Oudh 200,
referred to.

2.1. AN and DCC, represented by its President AN, were the
defendants in the eviction suit an~ were represented in the trial court by H
160 SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A their counsel Band his colleagues. The cause-title of the memorandum of
appeal against the eviction suit shows that there were two appellants - AN
and DCC. It is evident from the application for substitution that DCC was
aware of the filing of the appeal. The memorandum of appeal was signed
by colleague of B. It was accompanied by a vakalatnama executed by AN
B in favour of Band his colleagues. 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 AN was representing
him11elf and the DCC as its former President. Only when AN diP.d, the
working President of DCC filed an application for deletion of appellant
C no.1-AN 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. (168-G-H; 169-A-CI

2.2. When AN ceased to be the President, it is true that in the normal
D course, he could not have represented DCC as its former President. But
it was possible for AN 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, AN
continued to act on the assumption.that he was entitled to represent DCC.
E As no objection was raised during the lifetime of AN, his explanation is
not available as to why he chose to represent DCC in the appeal, as its
'former President'. Neither the office of the appellate court, nor the
landlord having raised this issue and the Vakalatnama signed by AN
having been received and impliedly accepted by the appellate court as
validly executed by the appellants, the landlord's objection to the
F 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, appellate court ought to have granted an· opportunity to DCC,
to rectify the defect. 1169-D-F)

2.3. Appeal by DCC against the eviction decree was validly filed.
G DCC was represented by B and his colleagues 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 (cj, even without a separate vakalatnama for the appeal.
H (169-G-H]
UDAY SHAN KAR TRIY AR'" RAM KALEWAR PRASAD SINGH [RAVEENDRAN, J.] 161

3. Vakalatnama, a species of Power of Attorney, is an important A
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 and the client. It regulates and governs the extent of
delegation of authority to the pleader and the terms and conditions
governing such delegation. Therefore, it should be properly filled/attested/ B
accepted with care and caution. Obtaining the signature of the litigant on
blank Vakalatnamas and filling them subsequently should be avoided. As
Registries/ Offices do not verify the Vakalatnamas filed in Courts with
the care and caution they deserve, routine defects take place of which
judkial notice is taken. Such failure many a time leads to avoidable C
complications at later stages. It is emphasised that there is a need to issue
appropriate instructions to the Registries/Offices to properly check and
verify the Vakalatnamas filed. 1170-A-C; 171-E)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6701 of2005.
D
From the Judgment and Order dated 28.7.2003 of the Patna High Court
in Misc.A. No. 300 of 2002.

Sunil Kumar, A.P. Sahay, Ms. Anita Kanungo and Mrs. Sarla Chandra
for the Appellant.
E
K.V. Mohan for the Respondents.

The Judgment of the Court was delivered by

R.V. RAVEENDRAN, J. Leave granted. This appeal by the landlord
(plaintiff in Eviction Suit No.2 of 1989 on the file of Munsiff, First, Samastipur, F
Bihar) is against the judgment dated 28. 7.2003 passed by Patna High Court
in MA No. 300/2002.

2. The appellant-plaintiff filed the said eviction suit against one Anugraha
Narayan Singh and the District Congress Committee (I), Samastipur, (referred
to as 'A.N. Singh' and 'DCC' respectively) on the following three grounds G
: (i) that the suit premises (house) was let out to A. N. Singh for his personal
residential occupation and the said A.N. Singh had unauthorisedly sub-let a
portion of the suit premises to DCC; (ii) that A.N. Singh had committed
default in paying the rent and electricity charges; and (iii) that the suit premises
was required for his personal use. H
162 SUPREME COURT REPORTS 12005] SUPP. 5 S.C.R.

A 3. The defendants resisted the suit. They denied the allegation that the
suit premises was let out personally to A.N.Singh for his residence. They
contended that the premises was let out to A.N. Singh in his capacity as
President of DCC for being used as the office of DCC, on a monthly rent of
Rs. 200 (inclusive of electricity charges), and there was no default in paying
B the rent. They also denied the claim of the landlord that the suit premises was
required for his own use.

4. The trial court decreed the suit by judgment and decree dated 6.6.1998
directing eviction and payment of arrears of rent and electricity charges. It
held that A.N. Singh took the premises on rent in his personal capacity and
C not on behalf of DCC; and that a portion of the suit premises was sub-let to
DCC without the consent of the landlord. The trial court also held that A.N.
Singh had committed default in paying the rents and electricity charges.

5. Feeling aggrieved, A.N. Singh and DCC filed Eviction Appeal No.4
of 1998 on the file of the Additional District Judge, Samastipur (referred to
D as the 'appellate. court'). In the memorandum of appeal, the second appellant
DCC was shown as being represented by its 'former President'. On an
application made by the appellants, the Appellate Court granted stay of
eviction. During the pendency of the appeal, on 23.8.2000, the first appellant
(A.N. Singh) died. His legal heirs did not come on record. However, one
Ram Kalewar Prasad Singh, claiming to be the 'Working President' of DCC,
E filed an application to delete the first ap6ellant and show DCC as the sole
appellant and also to substitute the words 'Working President' in place of
'former President' as the person representing DCC. The said application for
substitution was opposed by the landlord.

F 6. On hearing the said application for substitution, 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. I and 2
respectively, the Vakalatnama accompanying the memorandum of appeal
was signed only by A.N. Singh and no vakalatnama had been filed on behalf
of DCC. He, therefore, rejected the request of Ram Kalewar Prasad Singh for
G substitution on the following reasoning :-

"Appellant No. I died on 23.8.2000 and his legal heir has not come
for substitution and as such appeal has abated as against appellant no.
1; and no appeal was filed on behalf of District Congress Committee
(I), Samastipur and present appeal on behalf of appellant no. 2 is
H nullity in the eye of law and hence liable to be dismissed. Accordingly
UDA Y SHANKAR TRIYAR ~·. RAM KA LEWAR PRASAD SINGH [RA VEENDRAN, J.] 163
the entire appeal is dismissed." A
The said order of the appellate court was challenged by Ram Kalewar
.Prasad Singh and DCC, in Misc. Appeal No.300 of 2002. A learned Singh
Judge of the Patna High Court allowed the said appeal by order dated
28.7.2003. The High Court reasoned that the appeal against the eviction
decree had been filed both by A.N. Singh and DCC which was a separate B
juristic person (described accordingly in the plaint by the landlord); that
while it was true that a former President could not represent DCC in the
appeal and DCC had not granted a vakalatnama, neither the landlord
(respondent in the said appeal) nor the Office had raised any such objection;
and that as the juristic person (DCC) was already on record, the person C
entitled to represent such juristic person ought to have been permitted to
come on record, and thus rectify the defect relating to improper representation.
The High Court, therefore, permitted DCC represented by its 'Working
President' to come on record and pursue the appeal before the appellate
court. The High Court, however, kept open the question relating to the right
of the working President to represent DCC, to be decided in the appeal. D
7. The said order of the High Court is challenged contending that the
High Court has failed to note that there was no 'appeal' by DCC before the
District Court, in the eye of law, for two reasons. Firstly, though DCC was
arrayed as the second appellant in the memorandum of appeal, it was shown
as represented by its 'former President', and a former President could not E
represent DCC. Secondly, the Vakalatnama in favour of the pleader was
executed only by A.N. Singh and not by DCC. It is submitted that the appeal
was, therefore, in effect, only by A.N. Singh, and as his L.Rs. did not "come
on record on his death, the appeal abated. Reliance is placed on an old
decision of the Patna High Court in Sheikh Pa/at v. Sarwan Sahu, (1920) 55 p
IC 271] wherein it was held that presentation of a memorandum of appeal by
a Vakil without any authority in the shape of a Vakalatnama is not a valid
presentation.

8. On the other hand, learned counsel for the respondents submitted
that the order of the High Court did not suffer from any error. He pointed out G
that DCC had been impleaded as the second defendant in the eviction suit;
that DCC was represented by its President A.N. Singh in the suit; and that
by the time the appeal against the eviction decree was filed, A.N.Singh had
ceased to be its President, but as he had represented DCC in the suit, the
appeal was tiled by A.N. Singh on behalf of himself and on behalf of DCC H
164 SUPREME COURT REPORTS [2005] SUPP. S S.C.R.

A as its former President. It is submitted that failure to mention in the
Vakalatnama that A.N. Singh was executing the Vakalatnama not only as the
first appellant, but also on behalf of the second appellant (DCC), was due to
oversight. It is submitted that DCC being represented in the appeal by a
'former President' was also a curable defect. It is contended that if either the
landlord or the office had pointed out the said defect/omission, it would have
B been rectified immediately; and, therefore, the application filed by the working·
President for substitution was rightly allowed by the High Court.
'
9. Two questions, therefore, arise for our consideration : (i) whether the
appeal by DCC against the eviction decree was defective or invalid and (ii)
C whether such defect could be permitted to be rectified ?

I 0. Order 41 Rule I CPC requires every appeal to be preferred in the
form of a memorandum signed by the appellant or his pleader and presented
to the court or to such officer as it appoints in that behalf. Order 3 Rule 4
CPC deals with appointment of pleaders. Relevant portion thereof is extracted
D below:

"4. Appointment of pleader.-( I) No pleader shall act for any person
in any Court, unless he has been appointed for the purpose by such
person by a document in writing signed by such person or by his
recognized agent or by some other person duly authorized by or
E under a power-of-attorney to make such appointment.

(2) Every such appointment shall be filed in Court and shall, for the
purposes of sub-rule ( 1), be deemed to be in force until determined
with the leave .of the Court by a writing signed by the client or the
pleader, as the case may be, and filed in Court, or until the client or
F the pleader dies, or until all the proceedings in the suit are ended so
far as regards the client.

[Explanation.-For the purposes of this sub-rule, the following shall
be deemed to be proceedings in the suit, -

G (a) xx x
(b) xxx
(c) an appeal from any decree or order in the suit, ... "

11. In Bihar State Electricity Board v. Bhowra Kankanee Collieries
H Ltd., [ 1984] Supp) sec 597, this Court considered a case where the
lJDAY SHAN KAR TRIYAR I'. RAM KALEWAR PRASAD SINGH [RAVEENDRAN, J.) J 65
Vakalatnama was not filed with the Appeal Memo. As the defect was not A
removed in spite of grant of an opportunity, the High Court dismissed the
appeal as also the application for restoration. This Court, while allowing the
appeal against the said dismissal, held thus :-

"6. Undoubtedly, there is. ·Some negligence but when a substantive
matter is dismissed on the ground of failure to comply with procedural B
directions, there is always some eleme.nt of negf.igence involved in it
because a vigilant litigant would not miss complying with procedural
direction more so such a simple one as filing Vakalatnama. The
question is whether the degree of negligence is so high as to bang the
door of court to a suitor seeking justice. In other words, should an C
investigation of facts for rendering justice be peremptorily thwarted
by some procedural lacuna ?

7. It is not for a moment suggested that a party can ignore peremptory
orders of the Court for making the appeal ready for hearing the appeal
within a specified time. But having said this, it must also be borne in :D
mind that the procedure was devised for doing justice and not for
thwarting the same. In such a sitwrtion, civil courts have leaned in
favour of repairing the harassment, inconvenience or damage to the
other side by some order of costs. B'at to take the view that failure
to comply with an order for fiting Vakalatnama would result in
dismissal of the appeal involvin'g a fairly good sum is to put such E
procedural requirement on a pedestal tall enough to hinder the course
of justice. We find it difficult to be a party to this proposition. Hence
we are inclined to interfere."

12. In Shastri Yagnapurushdasji & Ors. v. Muldas Bhundardas Vaishya
and Anr., AIR (1966) SC 1119, this Court considered a case where the F
Vakalatnama was in favour of 'X', but the memorandum of appeal was
signed and filed by 'Y'. This Court while holding that the High Court was
justified in permitting 'X' to sign the memorandum of appeal, in order to
remove the irregularity, observed thus ;

"Technically, it may be conceded that the memorandum of appeal G
presented by Mr. Daundkar suffered from the infirmity that respondent
No. I had signed his Vakalatnama in favour of the Government Pleader
and Mr. Daundkar could not have accepted it, though he was working
in the Government Pleader's office as an Assistant Government
Pleader. Even so. the said memo was accepted by the office of the H
166 SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A Registrar of the Appellate Side of the High Court, because the Registry
regarded the presentation of the appeal to be proper; the appeal was
in due course admitted and if finally came up for hearing before the
High Court. The failure of the Registry to invite the attention of the
Assistant· Government Pleader to the irregularity committed in the
presentation of ·lhe said appeal cannot be said to be irrelevant in
B dealing with the validity of the contention raised by the appellants. If
the Registry,:had returned the appeal to Mr. Daundkar as irregularly
presented, the irregularity could have been immediately corrected
and the Government Pleader would have signed both the memo of
appeal and the Vakalatnama. It is an elementary rule of justice that
c no party should suffer for the mistake of the court or its office."

13. We may also usefully refer to the decision in Kodi Lal v. Ch.
Ahmad Hasan, AIR (1945) Oudh 200], where the legal position was stated
thus : -

D "The governing rule no doubt is that the counsel must be duly
authorized by his client to enable him to sign the appeal or to present
it on his behalf:. ... ;;, It is to be noticed that the procedure, which is
laid down imposes a. prohibition on the pleader to act without a valid ·
power. It does not c9nfer any benefit on the opponent except perhaps
on the hypothesis that. ti}~ actings of the counsel do not amount to
E acting in law. Where circumstances disclose however that the omission
to file a power at the time of presentation of the appeal was accidental,
it would be inequitable to visit the penalty for the omission on the
litigant by insisting that his appeal must fail. Sub-rule ( 1) of R.4 of
0.3 does not prohibit a Court from giving under S. 151, Civil P.C.,
retrospective validity to· the act of a pleader who files a vakalatnama
F
subsequently ........ Ordinarily a power must be filed either antecedently
or simultaneously with the acting but unless it is so enjoined or any
principle of law is violated or injustice 'is likely to occur, a statutory
rule of practice should not normally be allowed to be used as a
weapon of attack. The following dictum of Bowen L.J., in (1884) 26
G Ch. D. 700 may be here referred to with advantage :

"The object of Couits is to decide the rights of parties and not to
punish them for mistakes which they make in the conduct of their
cases by deciding otherwise than in accordance with their tights ...
Courts do not ,exist for the sake of discipline, but for the sake of
H deciding matters in controversy."
UDAY SHAN KAR TRIYAR "·RAM KA LEWAR PRASAD SINOH [RAVEENDRAN, J.] 167

If therefore there was an inadvertent technical violation of the rule in A
consequence of a bona fide mistake, and the mistake is subsequently
remedied the defect need not necessarily be fatal."

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 B
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 attorney."

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 C
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 D
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 E
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 F
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 G
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 H
168 SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A be convenient to facilitate the processing of the appeal by the office.
16. An analogous provision is to be found in Order 6 Rule 14 CPC
which requires that every pleading shall be signed by the party and his
pleader, if any. Here again, it has always been recognized that if a plaint is
not signed by the plaintiff or his duly authorized agent due to any bona fide
B error, the defect can be pennitted to be rectified either by the trial court at
any time before judgment, or even by· the appellate court by permitting
appropriate amendment, when .such def~ct comes to its notice during hearing.

17. Non-compliance with any procedural requirement relating to a
pleading, memorandum of appeal or application or petition for relief should
C 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 to justice, should never be made a tool to deny justice or
perpetuate injustice, by any oppressive or punitive use. The well recognized
D 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;
E
(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.
F (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;

18. We wjll 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
G 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.
H The memorandum of appeal was signed by Shri Umesh Chandra Kumar,
UDA Y SHAN KAR TRIYAR r. RAM KALEW AR PRASAD SINGH [RAVEENDRAN, J.) J69

Advocate, colleague of Shri Bindeshwar Prasad Singh. It was accompanied A
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. B
Only when A.N. Singh died and the working President of DCC filed an
application for deletion of appellant No. I (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 C
court ought to have accepted the application for amendment and substitution
filed on behalf of DCC.
'I
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 P
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 act 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 E
he chose to represent DCC in the appeal, as its '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 landlord's objection to the application for substitution ought
to have been rejected by the appellate court. At all events, if the representation F
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 colleagues in the trial court. The same counsel filed the G
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.
H
170 SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A 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 and the
B client. It regulates and governs the extent of delegation of authority to the
pleader 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
C defects routinely found in Vakalatnamas filed in courts :-
(a) Failure to mention the name/s of the person/s 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
D Vakalatnama 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
E 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
F
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
G
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 aTrust and its trustee, or an ·organisation and
its office-bearer, execute a Vakalatnama, invariably there will be
H only one signature without even an endorsement that the signature
UDAY SHANK.AR TRIYAR 1·. RAM KALEWAR PRASAD SINGH (RAVEENDRAN, J.] 171

is both in his/her personal capacity and as the person authorized· A
to sign on behalfofthe corporate body/firm/ society/organisation.\
(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; B
(h) Where several persons sign a single vakalatnama, failure to affix
the signatures 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); C
(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 the High Court, and engage D
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 E
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.

22. Coming back, we find that the High Court was justified in setting
aside the dismissal and restoring the first appeal to the file of the Additional F
District Judge with a direction to decide the matter on merits. We, therefore,
dismiss this appeal.

Nothing stated above or by the High Court, shall be construed as an
expression of any view or opinion on the merits.
G
N.J. Appeal dismissed.