P L D 1959 (W (PLP)

Fazle Ghani for Appellant. Said Akbar for Respondent. This appeal arises out of a suit for pre‑emotion. The suit was decreed by the trial Court. The value of the suit for purposes of jurisdiction had been fixed at Rs. 1,500 and an appeal against the decree of the trial Court lay to the District Judge but by some mistake appeal was filed in the Court of the Senior Civil Judge. When the mistake was discovered, Mr. M. S. Mahbub, learned counsel for the appellant, conceded that the appeal had been wrongly filed. The learned Senior Civil Judge ordered that the memorandum of appeal be returned to the appellant. The memorandum of appeal was received from the Court of the Senior Civil Judge by Maulvi Siraj‑ul‑Haq Advocate, acting on behalf of Mr. M. S. Mahbub and was presented in the Court of the District Judge, also by Maulvi Siraj‑ul‑Haq. Maulvi‑Siraj‑ul‑Haq had no authority in writing from Mr. M. S. Mahbub to present the appeal though he had been orally instructed by Mr. M. S. Mahbub. Mr. M. S. Mahbub had a power‑of‑attorney from the appellant. In the Court of the District Judge, an objection was raised on behalf of the respondent that the appeal had not been properly presented. The learned District Judge gave effect to this objection and dismissed the appeal. The only question which I have to decide is whether the dismissal of the appeal on the ground that it was not properly presented was justified.

2. The argument on behalf of the respondent is that under Order XLI, rule 1, C. P. C., an appeal is to be presented to the Court or to an officer appointed by it and, read with Order III, this rule would mean that there has to be a presentation of the appeal by a party or a person authorised in accordance with Order III. According to rule 4 of Order III, no pleader can act in any Court for any person unless he is appointed by a document in writing although he can plead without a written authority. It is contended that presentation is acting and not pleading and only a pleader authorised in writing by the party could have presented an appeal.

3. On behalf of the appellant reliance is placed on a judgment of Division Bench of the Lahore High Court in Mst. Barkat v. Feroze Khan (A I R 1944 Lah. 131). The facts in that case were similar to those of the present case. There too a memorandum of appeal had been filed on behalf of Mr. Ghulam Dastgir, Advocate, who held in his favour a power‑of‑attorney from the appellant, by Chaudhri Shah Muhammad, Advocate, who had not been authorised in writing either by the party or by Mr. Ghulam Dastgir. The learned Judges held that this lack of written authority did not invalidate the presentation. This conclusion was based on alterna tive grounds. The learned Judges were not inclined, in the first place, to hold that presentation by the party or its agent was necessary. In the second place, they were of the opinion that presentation was a mechanical act authority to perform which could be delegated without any writing. The learned Judges were also of the opinion that in any case, the lack of written authority in favour of the counsel who presented the memorandum of appeal would only amount to an irregularity and would not invalidate the presentation. It is a Division Bench judgment, by which I am bound, but as the learned Judges put the case on alternative grounds, I am not bound by the whole of the reasoning and will state my own views.

4. With the first two grounds with great respect I am not inclined to agree. The learned Judges relied on the fact that in rule 1 of Order XLI, it is not stated as to who is to present an appeal though the rule does say that an appeal is to be presented to the Court or to an officer appointed by it. But the effect of Order XLI, rule 1 and Order Ill, rule 1, C. P. C., must be that an appeal is to be presented by the party or its agent or a pleader duly appointed. Order III, rule t says any appearance or act in a proceeding can be made or performed by a party or its agent or pleader duly authorised, and this necessarily means that no person other than a party or its duly authorised agent or pleader can act in a proceeding. If we were to hold that presentation by a duly appointed person is not needed at all in accordance with the provisions of the Civil Procedure Code, then plaints, appeals and applications may all be sent only through post or through some messenger or in any other manner whatsoever and legally no objection could be taken to this procedure. But even learned counsel for the respondent finds it difficult to go to this extent. I have referred to a plaint also because the provision relating to plaints is in similar terms as that relating to appeals. Order IV, rule 1, C. P. C., provides that a suit is to be instituted by the presentation of a plaint to the Court or to an officer appointed by it and there is no provision even with respect to plaints as to who is to present it.

5. I would also not agree that presentation is a mere mechanical act which can be performed by any other person on R behalf of the pleader. The learned Judges, who decided Mst. Barkat v. Feroze Khan, were obviously influenced by the fact that Courts allow plaints etc., to be put into boxes which are kept for the purpose. The learned Judges argued that counsel could put plaints in the boxes through their clerks and, therefore, it was obvious that this was a mechanical act, authority to perform which could be delegated orally. But suppose there was no box and presentation was to be made to the presiding officer of the Court itself. Could it possibly be argued that a clerk could also go and present the plaint ? If it is a purely mechanical act, and authority to perform a purely mechanical act can be delegated, then why is it that a presentation to the Court itself by a clerk of the counsel is not to be regarded as valid ? The correct way of looking at the matter is this. A presentation has to be by the party or the party's agent or pleader. But in order that presenta tion may be by the party or its pleader, it is not necessary that the party or the pleader should himself put the plaint before the presiding officer of the Court and if a counsel asks his clerk to place the plaint before the Reader of the Court it is a presentation by the counsel to the Court although actually the persons handling the plaint are the clerk of the counsel and the reader of the Court. The pleader presents the plaint by the hand of his clerk and the reader of the Court takes it under the directions of the presiding officer of the Court and there is a valid presentation. Presenta tion, however, does not simply mean causing the plaint to be placed before the person to whom it is to be presented. It neces sarily involves the idea of the person who is presenting it being himself present. When plaints are put into boxes, it is not merely the putting into the box that constitutes presentation. It is assumed that the person who is presenting it is present and will appear whenever called. Suppose a plaint was sent from Lahore through a clerk to Peshawar by a pleader who himself remained at Lahore, Could it be said that' the presentation at Peshawar was by the pleader himself or could it be argued that because it was a mechanical act, it could be performed by the clerk ? The clerk can perform the act only as long as the pleader is available so that he will be present whenever called.

6. With the third of the grounds, however, in which the learned Judges relied, I have not the slightest hesitation in agreeing. The Civil Procedure Code does require that presentation should be by a party or a person authorised in accordance with Order III, rule 1, C. P. C. But it does not mean that in all cases, where the requirements of this rule are not strictly complied with, presentation of the plaint or appeal must become invalid so that the Court has no jurisdiction to hear the proceeding. Non compliance with the provisions relating to presentation amounts only to an irregularity as does non‑compliance with some other provisions relating to pleadings. A plaint has to be signed and verified. Yet it has never been held that the failure to sign or verify a plaint is fatal as long as the suit was in fact instituted according to the instructions of the plaintiff. The case of presenta tion of appeals is similar: ft is an irregularity only if the person, who is presenting the plaint, is in fact authorised, but in the authority granted to him there is a formal defect. I am not saying that being an irregularity it is to be condoned in all cases. That will depend upon the circumstances of each case. If there be frequent non‑compliance with these provisions, Courts may take a strict view so as to enforce obedience, but the mere fact that an appeal has not been presented by a person who, at the time when' he presented it, was not armed with written authority from the` party, does not necessarily lead to a dismissal of the appeal. As I have said, it will depend on the circumstances of each case whether the defect is to be condoned, and in the present case I have no hesitation in condoning it.

7. In Wall Muhammad v. Ishak Ali (A I R 1931 All. 507) a plaint had been pre sented by a next friend on behalf of a person who believed himself to be a minor but who was ultimately proved to be major. It was held that the presentation by the next friend was only an irregularity which did not affect the jurisdiction of the Court and the suit could not be dismissed on this ground.

8. Learned counsel for the respondent relied upon Ganesh Das v. Har Bhagwan (A I R 1932 Lah. 273), Nawab v. Charagh (A I R 1936 Lah. 195), K. L. Gauba v. Indo Swiss Trading Co. (A I R 1936 Lah.500), Bashir Ahmad v. Mary Minck (A I R 1938 Lah. 698), Secretary of State v. Gopalmal (A I R 1932 Cal. 1) and In re Filing Powers by an Advocate or Pleader (A I R 1926 Rang. 215). All of them except the last two were cited in Mst. Barkat v. Feroze Khan and were distinguished. I should state that the decision in these cases are not consistent with the proposition that presentation is a mechanical act and, therefore, can be made by any person instructed by the party or the pleader of the party. I have not accepted that proposition and I have based my decision on the defect in presentation being a mere irregularity. In none of these cases was this question discussed.

9. I hold that the defect was not fatal and does not entail the dismissal of the appeal. I accept this appeal and setting aside the decree of the learned District Judge remand the case to him for decision in accordance with law. Costs of this appeal will be costs in the cause. K. M. A. Appeal accepted.