P L D 1972 Supreme Court 9 (PLP)

On this date, namely, the 25th of October 1961, Mr. Mahmood Akhtar, Pleader, filed a vakalatnama on behalf of the appellant. The vakalatnama bore the thumb-impression of the appellant and had been duly accepted by Mr. Mahmood Akhtar, but it transpired that the name of Mr. Mahmood Akhtar was not filled in the body of the vakalatnama and that the appellant had not affixed his thumb-impression on the vakalatnama in the presence of Mr. Mahmood Akhtar. The vakalatnama, it appears, had been sent to the appellant through a messenger by his nephew Sargul and it was Sargul who had then given it to Mr. Mahmood Akhtar who endorsed his acceptance on its reverse and filed it in Court. There was no allegation that the thumb-impression on the vakalatnama was not that of the appellant nor was it disputed that Mr. Mahmood Akhtar had himself signed his acceptance on the back of the vakalatnama, yet the learned Controller held the vakalatnama to be invalid and decided to proceed with the case ex parte. An ex parte order of ejectment was, accordingly, made on the same day directing the delivery of vacant possession within a month. The appellant promptly went up on appeal to the District Judge. Lahore but the latter agreed with the views of the Rent Controller relying on the case of Muhammad All Khan v. Jas Ram (L R 36 All. 46). In second appeal, too, a learned Single Judge of the High Court endorsed this view and the same was upheld by the Division Bench also in Letters Patent Appeal. The contention that the mere absence of the name of the Pleader from the body of the vakalatnama could only be an irregularity if the intention of the parties was otherwise clear, was repelled by saying that in the instant case that intention itself was in doubt. Leave was granted in this case to consider whether, in the circumstances of this case which showed that the intention of the appellant to appoint Mr. Mahmood Akhtar as his vakil was abundantly manifested by the due execution of the vakalatnama both by the appellant as well as by the Pleader, the Rent Control ler was justified in rejecting the same. Learned counsel for the appellant has contended that the view taken by the Courts below is not only an extremely technical one but is also based upon a misreading of the pro visions of rule 4 of Order III of the Code of Civil Procedure. All that sub-rule (1) of rule 4 requires is that "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 authorised by or under a power of attorney to make such appointment." In the present case, since there was no allegation that the thumb-impression on the vakalatnama was not of the appellant or that the signature under the "acceptance" on the reverse was not of Mr. Mahmood Akhtar or that Mr. Mahmood Akhtar was not the person who was appointed by the appellant to appear on his behalf, it is contended that the mere omission of the name of Mr. Mahmood Akhtar from the body of the vakalatnama was not sufficient for its rejection. At worst, this was only an irregularity which could have been cured then and there by the entry of the name in the body of the vakalatnama. In support of this contention, reliance has also been placed on a later decision of the Allahabad High Court itself in the case of Ram Sarup v. Sahu Bhagwati Prasad (A I R 1936 All. 636) and of the Lahore High Court in the case, of Mangal Singh v. Babu Singh (A I R 1932 Lah. 134). In the latter case the vakalatnama filed by the learned counsel presenting the appeal suffered from an exactly similar defect, namely, that the learned counsel's name had not been entered in the body of the vakalatnama although it was signed both by the learned counsel and the party for whom he was to appear. The Court allowed the defect to be rectified because it appeared to the Court that there was "no difficulty in finding from the power of attorney for whom the counsel was acting." This correction was however done after the period of limitation for the filing of the appeal had expired. A preliminary objection was, therefore, taken to the competency of the appeal but the Court overruled this objection holding that this was "merely an accidental omission". There was no doubt at all as to the authorisation of the counsel and as to the party who authorised him to act on his behalf, as these matters appeared on the face of the power itself. The omission, therefore, did not invalidate the acts of the learned counsel. The appeal was, accordingly, held to be properly filed on its first presentation. In the Allahabad case cited above the name of another lawyer appeared in the vakalatnama by mistake but it was held that such a formal defect was of no importance. The same view, it appears, was taken by another learned Judge of the same High Court in an earlier case of Shambhu Nath v. Badri Das (A I R 1921 All. 210). There too the name of the pleader was accidentally omitted from the body of the vakalatnama but the Court held that, if the vakalatnama had been accepted by the pleader, then it would be too technical a view to hold that it was not a valid authority to the pleader merely because his name did not appear in its body. To the same effect is the more recent view of a Division Bench of the West Pakistan High Court itself in the case of Malik Sajawal Khan v. The Deputy Commissioner, Sargodha (P L D 1968 Lah. 527) wherein two decisions from the Nagpur and Patna High Courts respectively have also been relied upon. All these cases seem to indicate that the accidental omission of the name of the pleader from the body of the vakalatnama is a mere irregularity and it would be too technical to hold that the vakalatnama is not valid merely on this account. The defect can be remedied at any time and certainly before the period of limitation or the time prescribed for the doing of the act in question has expired as was done in the case of Mangal Singh v. Babu Singh. The Letters Patent Bench has tried to distinguish the case of Malik Sajawal Khan v. The Deputy Commissioner, Sargodha on the ground that for the purpose of appearance and pleadings merely a memorandum of appearance was enough; but this was clearly not a valid ground of differentiation, because, even a memorandum of appearance cannot be filed by a pleader unless he has been duly authorised. The real ratio of the decision was that a vakalatnama is not invalidated by the mere accidental omission of the name of the pleader from the body of the vakalatnama. The learned Single Judge in the High Court relied on an earlier decision of the Allahabad High Court in the case of Chitta v. Mst. Jaffo (A I R 1931 All. 767) without noticing the subsequent decision of the Allahabad High Court itself or of the Lahore High Court which had taken a different view. We find ourselves unable to accept the view taken in the High Court that such an omission will by itself invalidate the vakalatnama. The rules framed in the Code of Civil Procedure are rules made for the advancement of justice and they should not, as far as possible, be allowed to operate so as to defeat the ends of justice. If we were to accept the highly technical view taken by the High Court in the present case, then it would result in making it extremely difficult for people living in the interior of the country to appoint pleaders to represent their cases at the District Headquarters where Courts are usually situated. These rules are in the nature of enabling provisions and substantial compliance with them should be enough. No one has in the present case challenged that the appellant did not wish to engage Mr. Mahmood Akhtar to represent his case before the Rent Controller, nor has it been challenged that Mr. Mahmood Akhtar was not willing to accept the appellant's brief. Indeed, at the appellate stage before the District Judge, an affidavit was actually put in by the appellant himself saying that he had sent the power duly thumb-marked to his nephew Sargul with instructions to engage Mr. Mahmood Akhtar, who .has his office almost next door to the place where the appellant carries on business. It is nowhere provided in rule 4 of Order III of the Code of Civil Procedure that both the pleader as well as the client must execute the Power of Attorney in each other's presence, We are unable, therefore, to accept this over-technical view of the High Court. The Courts below have, in our view, clearly gone wrong in holding that the appellant was not properly represented by a pleader holding a duly executed Power of Attorney before the Rent Controller. In any event we are clearly of the opinion that the Rent, Controller was not justified in the facts and circumstances of the case to proceed ex parte without giving any opportunity to the Pleader concerned to remedy the defect in the power or to prove that he had been duly appointed to represent the appellant in this case. We, accordingly, allow this appeal, set aside the orders of all the Courts below and remand the case back for hearing by a Rent Controller to be nominated by the District Judge, Lahore. Since along time has now elapsed, we also direct that the Rent Controller should dispose of the case within two months of the receipt of the records in his Court. The written statement will, however, be accepted only if the appellant deposits in the Court of the Rent Controller all arrears of rent calculated up to the month of October 1971, within a reasonable period to be fixed by the Rent Controller. In default of this deposit being made, this order will stand vacated and the appeal dismissed. In the event of the deposit being made, the costs of this appeal will be costs in the cause. Appeal allowed.