P L D 1969 Karachi 210 (PLP)

6. On the ground that Order XXVII and not Order III applies to proceeding3 to which Government is a party and that on the point under discussion rule 2, read with rule 8‑B (a) of Order XXVII of C: P. C. applies, the learned Attorney General argued that Mr. Mohammad Akram must be considered to have been the properly constituted counsel of the Government of Pakistan specially on the established position that Mr. Mohammad Akram appeared before the umpire even in the arbitration proceedings. Mr. Yasin relied on a judgment of a Single Judge, Mr. A. R. Changez in Thal Development Authority v. Nisar Ahmed Qureshi (P L D 1962 Lah. 830) to support his argument that the provisions of Order III also apply to Advocates and no pleader or Advocate can act in Court unless duly appointed by an instru ment in writing and that under Order III, rule 1, the filing of objections by pleader to application under section 14 of the Arbitration Act, 1940 amounts to pleader's acting on behalf of his client within the meaning and scope of Order 111, C. P. C. The facts of that ruling need not be reiterated here. Suffice it to say that Changez, J. concluded as he did on the basis of a vakalatnama filed with the objections signed by Mt. Soofi, who had relinquished charge of the Chairmanship of the Thal Develop ment Authority some months before the case came up before the Court holding that vakalatnama could not be taken to have been signed by the new Chairman of the T. D. Authority who had been issued notice by the Court and that as such the vakalatnama could not be legally used by Sh. Shaukat Ali, who filed the objections. This finding was overruled by their Lordships of the Supreme Court in an unreported case That Develop ment Authortty v. Mr. Nisar Ahmed Qureshi (Civil Appeal No. 85 of 1965) with the observations that the Thal Development Authority by a letter written on the 11th of January 1961, instructed Sh. Shaukat Ali to appear in the Court of the Senior Civil Judge, Lahore, to file objections to the award on its behalf, which letter in their view constituted a proper "document in writing" signed by an agent of the Authority appointing Sh. Shaukat Ali a pleader to act on its behalf in the matter of filing objections to the award, that as such no other formal document was necessary to comply with the requirements of Order III, rule 4, C. P. C. Their Lordships went on to observe that they agreed with the interpretation of section 73 of the That Development Authority Act that even though the Chairman alone was competent to institute, defend or withdraw from any legal proceedings on behalf of the Authority; the letter dated 11th January 1961, which emanated from the office of the Chairman was signed by the Administrative Officer had raised a presumption that the said officer was competent to act and sign on behalf of the Chairman as a delegatee under section 19 of the Act.

7. The learned Attorney‑General has also argued that the primary object of Order Ill, rule 4, C. P. C. was to protect parties and not to penalise them and reliance was placed on the rulings of several High Courts to support the contention that even if it be conceded that if the objections did not bear the signature of Mr. Mohammad Akram it amounted to an irregularity and not an illegality which could be cured and was not fatal to the objec tions filed. On the primary principle as to whether a plaint should necessarily bear the signature and verification of the plaintiff the Privy Council in Mohini Mohun Das v. Bungsi Buddan Saha Das (I L R 17 Cal. 580) observed that‑there is no rule that a person named as a co‑plaintiff is not to be treated as a plaintiff unless he signs and verifies the plaint. The short facts of that case were that three suits for monies were filed by one of three joint creditors, the other being named as co‑plaintiffs with him in the plaint, which only joint creditor had signed and verified and an order made by the Court after the filing of the plaints that one of the joint creditors should be added as co‑plaintiff. It was held that all the joint creditors became plaintiffs when plaints were filed, the order for the addition of the parties was inoperative and that the suits when filed ware not defective for want of parties. In Kodi Lal v. Ch. Ahrned Masan and others (A I R 1945 Oudh 200) a Division Bench was considering the case in appeal filed without vakalatnama, the appellant believing bona fide that he had filed the vakalatnama in the trial Court which mistake he corrected after limitation and held that the irregularity was not fatal and that the appeal should not be dismissed on the account. The relevant observations are as follows :‑ "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. If, therefore, there was an inadvertant technical violation of the rule in consequence of a bona fide mistake, and the mistake is subsequently remedied the defect need not necessarily be fatal. Where circumstances disclose 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. Where, therefore, the appeal has been filed by an Advocate with the knowledge and on instructions from his client but it suffered from a procedural defect under a bona fide though mistaken belief that the necessary power already existed, and the defect is remedied as soon as the mistake has been brought to the notice of the Advocate concerned, a procedural irregularity of this nature arising from a bona fide mistake on the part of the pleader is not so vital as to render the appeal incompetent and the memorandum presented by him need not therefore be ordered off the file on a technical ground of this character." Similarly in Hirabai Gendalal v. Bhagirath Ramchandra & Co. (A I R 1946 Bom.174) it was held that the presentation of a plaint by a person not properly authorised amounted to mere irregularity and a decree obtained cannot be set aside merely on the ground of that irregularity with the observations that- "Failure to comply with the provisions regarding presentation of a plaint is a mere irregularity, so that if the person presenting it is not properly authorised to do so, the presenta tion would be irregular, but does not oust the jurisdiction of the Court. In such a case the Court would have a discretion to permit the irregularity to be cured, and if the plaintiff has acted in good faith and without gross negligence, the Court would allow it to be cured. The suit must then be deemed to have been filed when it was first instituted, and under section 99, the decree passed in favour of the plaintiff will not be reversed in appeal on the ground of the said irregularity." In Madella Satyanarayana v. Yamopoori Venkata Subbiah (A I R 1957 Andh. Pra. 172) a Full Bench of that Court was considering that "whether the presentation of an application by a pleader to whom the authority in the prescribed manner under rule 4, Order III, C. P. C. was not given is only an irregularity which could be cured at a subsequent stage; " In reviewing the judgments of the High Courts of Allahabad, Bombay and Calcutta on one side and of the Madras High Court on the other, the High Court of Lahore, Rangoon, supporting the latter views in respect of the presentation of an application. Their Lordships observed that the Madras High Court took the view that the presentation of an application without a vakalatnama in favour of the pleader acting for an appellant was an irregularity, which could not be cured may be justified on a strict interpretation of the relevant provisions but that the High Courts of Allahabad, Bombay and Calcutta supported by that of Lahore and Rangoon took a more liberal view that such a presentation was merely an irregularity and could in an appropriate case be cured or condoned. They went on to observe that‑ "the preponderance of judicial opinion establishes that failure to comply with the provisions regarding presentation of an application for execution is a mere irregularity so that if the person presenting it is not properly authorised to do so, the presentation would be irregular but it would not be a nullity. In such a case the Court would have a discretion to have the irregularity cured and if the applicant had acted in good faith." and that the general rule is that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment is obeyed or fulfilled substantially. As Mahmood, J. observed in Narsingh Das v. Mangal Dubey (I L R 5 All. 163) "Courts are not to act on the principle that every procedure is to be taken as prohibited unless it i3 expressly provided for by the Code but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by law." Although in the words of Coleridge, J. in Hones v. Russel (9 Dowe 28 (U)) "It is difficult sometimes to distinguish between an irregularity and a nullity ; but the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection; if he can waive, it amounts to an irregularity; if he cannot, it is a nullity." The learned Attorney‑General, therefore, argued that the same principle should be applied here, namely, that if the objections with regard to the presentation of the application by Mr. Mohammad Akram who, according to Messrs Nabi Bakhsh & Sons was not duly authorised could be waived by them and the objections heard on that basis that only amounted to an irregularity. Similar views were taken by a Division Bench of the High Court of Andhra Pradesh in the Hyderabad Import Export Co. v. The United Trading Co. (A I R 1958 Andh. Pra. 652) that if a fresh vakalatnama is filed before the final orders are passed on an application for restoration the defect in the presentation of the petition is not improper and illegal and the jurisdiction of the Court is not ousted and that the relation between the pleader and his client is, in the final analysis, no more and no less than that of principal and agent and that the client may ratify the acts of his pleader and ratification means previous authority and that this ratification must be by means of a written instrument. In Sajawal Khan v. Deputy Commissioner, Sargodha (P L D 1968 Lah. 527) one of the grounds on which the election petition was assailed that it was not signed by the petitioner but by his attorney and the question for consideration was whether by reason of the name of the Advocate not being recorded in the body of the vakalatnama, he was not a duly constituted agent of the petitioner, and the presentation was not valid. It was held that the omission in the vakalatnama was only a clerical error and since the intention of the party was quite clear, there was sufficient compliance with the pro visions of the law and the presentation of the suit, and the application or appeal was not invalid and further that the interpretation of Order 111, rule 4, C. P. C. show that even where the rule requires the appointment by a document in writing by name of the Vakil or Advocate, the Courts have regarded an omission of his name in the document as a mere irregularity. Reference was made at page 535 to the observations of that eminent Jurist, Suleman, J., in Wali Mohammad Khan v. Ishak Ali Khan and others (A I R 1931 all. 507) where a suit under examination being instituted in the name of the plaintiff by his mother acting as his guardian and next friend described him as a minor, while in fact he was of age. The plaint was signed by the mother and by a pleader appointed under a vakalatnama bearing her signature. The plaintiff was aware of the institution of the suit and the learned Judge observed that the Court has a discretion in such circumstance to allow the irregularity to be cured if the plaintiff has acted in good faith and without gross negligence the Court could not being entirely helpless in the matter and have got their power to cure the irregularity.

9. I am, therefore, quite clear that if the only aspect taken for consideration is the signature of Mr. Mohammad Akram,~ Advocate on the objections filed to the award and these objections not having been signed by the person duly authorised to do so, it is only irregularity and not an illegality, it being established that Mr. Mohammad Akram was a properly constituted counsel on behalf of the Government of Pakistan.

10. The next ground urged by the learned Attorney General is supported by rules 2 and 8‑B of Order XXVII which read as follows:‑ "

2. Persons being ex officio or otherwise authorised to act for the Government in respect of any judicial proceeding shall be deemed to be recognised agents by whom appearance, acts and applications under this Code may be made or done on behalf of the Government. (8‑b) In this Order `Government' and `Government Pleader' mean respectively:‑ (a) in relation to any suit by or against the Central Govern ment or against a public officer in the service of that Govern ment, the Central Government and such pleader as that Government may appoint whether generally or specially for the purposes of this Order." In Lutfar Rahman Laskar and another v. The State of West Bengal (A I R 1954 Cal. 455) it was held that in a suit against the Government a Government Pleader need only intimate to the Court that he C is representing the Government in the proceedings before the Court and no stamped power of vakalatnama is required to be filed and that‑ "Where in a suit against Government and public officers ail that the Government Pleader does is to add in the memorandum which is filed by him intimating his appearance on behalf of the State that he is also appearing for public servants and there is no indication that the Government has undertaken the defence on behalf of such officers, and there is no application either as required under the rules, the Court is to proceed on the footing that there has been no appearance by the Government Pleader on behalf of the public servant." Rule 51 of the Sind Chief Court Rules (O. S.) is also clear on the established position that Mr. Mohammad Akram is a properly constituted counsel representing the Central Government.

10. For these reasons I hold that the objections to the award of the Umpire were properly filed by Mr. Mohammad Akram who was duly constituted by the authorities concerned and that, therefore, there is, no substance in the preliminary objec tions raised which I disallow, with costs. K. B. A. Objections disallowed.