9/25/24, 10:38 AM 1980 C L C 946

1980 C L C 946

[Lahore]

Before Zakiuddin Pal and Karrar Hussgin Zaidi, JJ

MOHAMMAD SARWAR alias FEROZE ALI-Appellant

versus

ABDUL GHANI AND 7 OTHERS--Respondents

Letters Patent Appeal No. 4/C of 1975, decided on 9th December. 1979.

(a) Civil Procedure Code (V of 1908)-

- O. 111, r. 1 & O. XLI, r. 1-Power of Attorney-Appeal-Appeal filed without appellant's

signature on memo. of appeal as well as on Power of Attorney-Such defect, held, an
irregularity and can " be rectified provided person presenting appeal or suit, otherwise
authorised to do so by party concerned.-[Power of Attorney].

Habeeb and others v. Naush Ali and othersY 1921 I C 444 ; Khaira vo Nathu and
others A I R 1920 Lab. 212 ; Bisheshar Nath v. Emperor 1944 I C 28 ; Basda v. John
Smith 22 All. 55 ; The Firm Mathra Das Bishambar Nath v. The Firm Roma Lai
Kanshi Nath A I R
1923 Lab. 402 ; Ram Lai v. Budho Mal A 1 R 1927 Lab. 618 ; Mst, Karam Nishan v.
Mehrban Ali .Shah P L D 1959 Lab. 946 ; Mst. Azra Begum v. Piran Ditto P L D 1967
Lab. 807 ; Messrs Kabi Bakhsh & Sons v. Pakistan through the Secretary, Ministry of
Industries and Natural Resources P L D 1969 Kar. 210 and Toor Gul v Mst. Mumtaz
Begum P 1- p 1972 S C 9 ref.

(b) Civil Procedure Code (V of 1908)-

-- O. III, r. 1 & O. XLI, r. 1-Purpose of provisions-To ensure suit or appeal being

preferred by recognised agent or pleader on behalf of party concerned-Provisions that
authority in favour of pleader should be in writing-Aims at eliminating every
possibility of confusion, fraud or exploitation and making sure of no harm being
caused to genuine party-Party genuinely and actually engag ing lawyer, giving
instructions and lawyer acting according to such instructions-Proceedings conducted
by such lawyer on behalf of his client, in absence of authority in writing, held, would
not become invalid.-[Counsel and client].

Ch. Ghulam Mujtaba for Appellant.

C. A. Rehman for Respondents.

Date of hearing : 21st November, 1979.

JUDGMENT

ZAKIUDDIN PAL, J.-This judgment will also dispose of L. P. A. 34/C of 72 as both

the appeals arise from the same judgment delivered by a learned Single Judge of this
Court.

2. The plaintiff appellant, Muhammad Sarwar, filed a suit for declaration under
custom, which was dismissed by the Senior Civil Judge, Gujranwala. Appeal against
9/25/24, 10:38 AM 1980 C L C 946

the judgment and decree was filed on 15th May, 1958 by Ch. M. A. Rehman,
Advocate, in the Court of the District Judge, Gujranwala. 1t is admitted on record that
neither the memorandum of appeal nor the vakalatnama attached with the appeal was
signed by the plaintiff-appellant. However, both the aforesaid documents had been
signed by his counsel. The appeal was put up before the learned District Judge on the
next day When only Ch. M. A. Rehman, Advocate appeared. The appeal was adjourned
to 4th July, 1958 for the appearance of the parties, when the plaintiff-appellant
appeared in person. Thereafter the appeal was adjourned many a time to different date,
finally it was heard and disposed of on 23rd April, 1959.

It may be mentioned that on many of the' at plaintiff appellant used to be present in the
Court.

On the last date of hearing the appeal was dismissed in pursuance of preliminary
objection raised on behalf of the respondent to the effect that since Ch. M. A. Rehman
did not hold power of attorney on behalf of the appellant, therefore, the memorandum
of appeal having not been filed properly was liable to be rejected. The case of the
plaintiff-appellant was that he executed vakalatnama in favour of Ch. M. A. Rehman,
who has since died, containing due instructions to file appeal on his behalf. It was,
however, misplaced by his clerk who got another vakalatnama signed from Mr.
Rehman which was attached with the memo. of appeal Affidavit to that effect was duly
sworn in by the appellant and was filed with the R. S. A. Its contents were not
controverted by any counter afdavit by the respondents.

3. Rule 1 of Order XLI, C. P. C. requires that every appeal shall be preferred in the
form of a memorandum, signed by the appellant or big pleader and presented to the
Court or such Officer, as it appoints in that behalf. The memorandum shall be
accompanied by a copy of the decree appealed from and, unless the appellate Court
dispenses it therewith, of the judgment on which it is founded. Order 111, rule 1, C. P.
C. provides that any appearance, application or act in or to any Court, required or
authorised by law to be made or done by a party in such Court, may, except where
otherwise expressly provided by any law for the time being in force, be made or done
by the party in person or by his recognized agent or by a pleader appearing, applying
or acting, as the case may be, on his behalf. It means that if a party does not appear
itself in the Court, then his duly authorised agent should appear to act on its behalf.

4. In the present case, as mentioned above, memorandum of appeal alongwith

vakalatnama was filed by the Counsel for the plaintiff-appel lant. Both these
documents had not been signed by the plaintiff-appellant, meaning thereby that the
Counsel did not possess the authority in writing from the plaintiff-appellant at the
relevant time to present appeal in the Court of the District Judge.

It has been contended on behalf of the defendants-respondents (who are appellants in

L. P. A. No. 34/C of 1972) that since the appeal was filed without any authority from
the plaintiff -appellant, therefore, the same was rightly dismissed by the learned
District Judge and no further opportunity should have been granted by the learned
Single Judge in presenting the memorandum of appeal again as required by law and to
find out further whether the delay in such circumstances could be condoned.

It may be mentioned that at the time when the appeal was dismissed, the plaintiff-
appellant had engaged another Counsel who had filed his power of attorney, but by that
time, as alleged by the defendants-respon dents, the appeal had become time-barred.

5. The question which arises for consideration is whether the presen tation of appeal in
the aforesaid manner amounts to an irregularity which can be cured in law. The
provisions as contained in Order III, rule 1 and O. XLI, rule 1, C. P. C. require that
presentation of appeal should be in! accordance with the aforesaid provisions but that
however, does not mean that in all cases where the requirements are not strictly
9/25/24, 10:38 AM 1980 C L C 946

complied with, presentation of appeal or suit as the case may be, would be invalid and
the Court concerned would not be competent to proceed with them. If a vakalatnama
filed along with the appeal or suit is defective it would amount to an irregularity which
can be rectified provided the person presenting the appeal or suit is otherwise
authorised to do so by the party concerned. Order XLI, rule 1 requires that every
appeal should be preferred in the form of a memorandum signed by the appellant or his
pleader and presented to the Court. Order 111, rule 1 provides that a party may be
represented in the Court through its recognized agent or a pleader. Rule 4 of Order III
requires that a pleader shall not 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 his recognized agent. If we strictly follow the aforesaid provisions it means
that any appeal or suit presented by a pleader not duly authorised by vakalatnama
would not be entertainable having not been presented properly. A careful examination
of the language used in the aforesaid provisions would show that they aim at providing
that appeal or suit should be presented by a person who is duly authorised in that
behalf. They want to make it sure that any appeal or suit which has been filed has been
actually filed on behalf of the party concerned and not otherwise.

In the present case as mentioned above the appellant has been appearing before the
learned lower appellate Court along with his Counsel irrespective of the fact that he
had not signed the power of attorney attached with the appeal. He never objected to the
appearance of his counsel on the plea that he was not authorised by him to pursue the
case. The appellant also filed affidavit in the High Court duly sworn by him stating that
he engaged Ch. M. A. Rehman, Advocate for filing his appeal before the District
Judge, Gujranwala. It means that Ch. M. A. Rebman, Advocate, was duly authorised
though orally by the appel lant to present his appeal. It was held in Habeeb and others
v. Naush Ali and others (A I R 1920 Lah. 212) that the memorandum of appeal as well
as vakalatnama having not been signed. by the appellant, the mistake being bona fide,
appeal was not void, nor barred by limitation. In that case memorandum of appeal was
filed by a pleader who had vakalatnama in his favour but by some oversight it was
omitted to have been signed by the appellants. After the period of limitation had
expired, absence of the appellants' signatures on vakalatnama was discovered. The
lower appellate Court held that in the circumstances the appeal was barred by time and
dismiss ed the same on that ground. It was held by the High Court that since the
memorandum of appeal was duly signed by the pleader, the only defect being that the
vakalatnama had been omitted to have been signed by the appellant, did not make the
memorandum of appeal void and inadmissible. It was further held that since the appeal
was filed under due instructions though not strictly in compliance with the
requirements of rule 4, Order 111, C. P. C. it was not barred by time.

In Khaira v. Nathu and others (A I R 1920 Lah. 212) vakalatnama attached with the
appeal preferred in the lower appellate Court had not been signed by the appellant.
This defect was discovered after the limitation period had run out. An objection was
raised before the High Court that the appeal in the lower Court should have been
dismissed on that ground. It was, however, repelled while relying upon Bisheshar Nath
v. Emperor (1944 1 C 28) and Basda v. John Smith (22 All. 55) that omission to sign
the power of attorney was obviously an oversight and subsequent signing of the same
cured the defect irrespective of the fact that limitation already had expired. It was held
in The Firm Marhra Das Bishambar Nath v. The Firm Rama Lal Kanshi Nath (A I R
1923 Lah. 402) that omission to sign a memorandum of appeal by over sight which
was otherwise in order and bad been duly represented was sufficient cause for
extension of time under section 5 of Limitation Act. In that case memorandum of
appeal had not been signed by the Counsel who presented the same in the absence of
the appellant. An application for permission to sign the memorandum was made by the
counsel but the same was rejected and consequently the appeal was also dismissed
having not been presented in a proper manner. It was held that since the appeal was not
signed by the counsel by an other sight therefore, there was sufficient cause for
9/25/24, 10:38 AM 1980 C L C 946

extension of time under section 5. The delay in filing the appeal was condoned by the
High Court" itself in the given circum stances.

In Ram Lai v. Budho Mat (AIR 1927 Lah. 618) vakalatnama filed along with the
memorandum of appeal did not contain the name of the Advocate who presented the
appeal. The appeal was returned to the counsel for the purpose of curing the defect. It
was, however, filed after the limitation had expired. The preliminary objection was
raised to that effect by the opposite party but the same was repelled on the ground that
it was of every technical nature and further the Advocate while accepting the
vakatatnama had signed the same at the bottom indicating that he had been duly
engaged by the appellant. There is no doubt that facts of that case are somewhat
different from the present case but the fact remains that the aforesaid defect was
codsi4ered to be a minor one which did not entail major penalty. In Mst. Karam Nishan
v. Mehrban Ali Shah (P L D 1959 Lah. 946) the appeal having been wrongly filed in
the Court of a Senior Civil Judge. Rawalpindi was returned to be filed in the proper
Court. Maulvi Siraj -ul-Haq, Advocate received the memorandum of appeal on behalf
of Mr. M. S. Mahboob, Advocate, counsel for the appellant and presented the same on
behalf of Mr. Mahboob in the Court of the District Judge, Rawalpindi. It is admitted
that Maulvi Siraj-ul-Haq, Advocate had no authority in writing from M. S. Mahboob,
Advocate to present the appeal though orally instructed by him to do so. At the time of
first hearing, the appeal was dismissed by the District Judge on the ground of having
not been properly presented. This order was upset by the High Court on the ground that
the defect of presentation being a mere irregularity it did not entail dismissal of appeal.
The defect in not presenting the appeal properly was condoned with a direction to the
District Judge to dispose of the same on merits. The main point which weighed with
the mind of the learned Judge in this case was that Maulvi Siraj-ul-Haq presented the
appeal before the learned District Judge under the oral instructions of the original
counsel. As mentioned above this fact is also amply proved in the present case. The
affidavit duly sworn in by the appellant with regard to this fact has not been
controverted by the respondent.

Similar position obtains in Mst. Azra Begum v. Piran Ditta (P L D 1967 Lah. 807). In
that case memorandum of appeal was signed by her counsel who was duly authorised
to file the same. It was. however, presented before the District Judge by a junior of the
aforesaid counsel on 7th of April, 1964 when the appeal was entrusted to the
Additional District Judge for disposal. The Additional District Judge dismissed the
appeal on the next date of hearing on the ground that it had not been presented in a
lawful manner. An application was moved under Order XLI, rules 1 and 19 and Order
XL1, rule I, C. P. C. that since the memorandum of appeal duly signed by the original
counsel was presented by another counsel verbally instructed by him in that behalf,
presentation thereof was proper. This application was however, rejected. This order of
the Additional District judge, was set aside by the High Court on the ground that the
appeal having been filed under the instructions .of the original counsel, was filed in a
lawful manner. In Messrs Nabi Bakhsh & Sons v. Pakistan through the Secretary,
Ministry of Industries and Natural Resources (P L D 1969 Kar. 210) the contention of
the learned counsel for the respondent to the effect that from all circumstances of the
case a clear intention could be gathered that Mr. Mohammad Akram was appointed by
the respondent to act on its behalf. Was accepted. It was held that apart from other
matters circum stances of the case showed that Mr. Mohammad Akram, Advocate, was
engaged by the respondent to act on its behalf. In Toor Gul v. Mst. Mumtaz Begum (P
L D 1972 S C 9) omission of the name of the pleader from the body of vakalatnama
was held to be an irregularity and not fatal to the case. It was held that such defect
could be remedied at any time and certainly before the period of limitation. It was
observed that 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 defeat the
ends of justice.
9/25/24, 10:38 AM 1980 C L C 946

The above discussion would show that main purpose of the relevant provisions as
contained in Order 111, rules 1 and 4 and Order XLI, rule 1, C. P. C. is to ensure that
suit or appeal, as the case may be, has been preferred by a recognized agent or pleader
on behalf of the party con cerned. The provision that authority in favour of a pleader
should be in writing aims at eliminating every possibility of confusion, fraud or
exploitation, so as to make sure that no harm is caused to the genuine party. If
circumstances of a case show that a party has genuinely and actually engaged a lawyer
and has given him due instructions who has acted according to them then even in the
absence of such authority being in writing, proceedings conducted by such lawyer on
behalf of his client would not become invalid.

In the present case, as mentioned above, Ch. A4. A. Rehman, Advocate, had due
instructions though oral from the appellant to present the memorandum of appeal. This
aspect had not been denied before us by the learned counsel appearing for the
respondent. He has mainly relied upon the provision as contained in rule 4, Order III
and has vehemently argued that since the vakalatnama had not been signed by the
appellant, therefore, appeal having not been filed properly was rightly dismissed by the
District Judge. He has also argued that there being no sufficient cause for condoning
the delay the District Judge rightly refused to show any indulgence in that behalf. We
are afraid this contention has no force in the given circumstances of the case. The
appeal was filed under the due instructions, though oral, of the appellant who had
engaged Ch. M. A. Rehman, Advocate, to present the memorandum of appeal. If there
had been any doubt about the engagement of M. A. Rehrnan, as counsel, the situation
might have been different. Consequently it is held that the appeal filed by the plaintiff-
appellant, Muhammad Sarwar before the District Judge, Gujranwala, was presented
lawfully and in a proper manner and was liable to be disposed of on merits in
accordance with law. The judgment of the learned Single Judge is modified to that
extent.

L. P. A. 4/C of 1975, therefore, stands accepted and L. P. A. 34/C of 1972 stands

rejected without any order as to costs in the peculiar circum stances of the case.

M. A. K. Appeal accepted.