UDAY SHANKAR TRIYAR versus RAM KALEWAR PRASAD SINGH AND ANR.

Citation: [2005] SUPP. 5 S.C.R. 157 · Decided: 10-11-2005 · Supreme Court of India · Bench: RUMA PAL · Disposal: Dismissed
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Judgment (excerpt)

' .... 
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 
Deeds and documents: 
Vakalatnama-Significance of-Held: Vakalatnama is a species of power 
F 
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 si
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