Kunj Behari Singh vs Sheodahin Pandey and others

Jwala Prasad, J.—The present petitioners have been substituted in place of the original petitioner who was the plaintiff in the Court below. The plaintiff instituted a rent suit out of which this application has arisen in the court of the Munsiff of Arrah, No. 72 of 1920. The defendants did not appear and the case was set down for an ex parte hearing on the 23rd May 1921. On that day the suit was dismissed for default.

On the 25th, the plaintiff filed a petition under Order IX, rule 4, of the CPC for setting aside the aforesaid order of dismissal of the suit and for its restoration. This application was rejected by the judgment of the Munsiff, dated the 7th July 1921. The plaintiff has, therefore, come to this Court in revision and asked to have the order of the Munsiff set aside.

The short ground urged in support of the application is that in fact there was no default in the appearance of the plaintiff, and the Munsiff had, therefore, absolutely no right to dismiss the suit for the non-appearance of the plaintiff under Order IX, rule 3. The contention appears to be sound and is borne out by the facts and circumstances of the case. On account of his old age the case of the plaintiff was looked after by his son, Ram Rachya Singh, and his Am-mukhtear, Lachmi Prasad, under a duly registered power-of-attorney.

The plaint was duly signed and verified by the Am-mukhtear Lachmi Prasad for the plaintiff. The Vakalatnama filed on behalf of the plaintiff was also executed by Lachmi Prasad. It contains the names of a number of pleaders of the Arrah Bar: but at the time of filing the plaint and the Vakalatnama the pleader Moulvi Abdul Aziz only accepted the Vakalatnama and made the necessary endorsement. On the 23rd May, the date of the hearing of the suit, the hazari of the plaintiff''s witnesses was filed under the signature of the said pleader Moulvi Abdul Aziz.

This gentleman is also very old being of about 80 years of age and was on those days observing the Ramzan fast. He left the Court at 10 or 10-30 A.M., and the case till then was not taken up. It was taken up at 11.26 A.M. as the order-sheet shows. Lachmi Prasad, the Mukhtear of the plaintiff, and Ram Rachya Singh, his [petitioner''s] son were both present is the Ijlas room and were also the witnesses on behalf of the plaintiff. The plaintiff''s witness went into the box. As pleader Moulvi Abdul Aziz had left the court, Lachmi Prasad and Ram Rachya Singh wanted Rai Jang Bahadur, pleader who happened to be present in Court, to appear and examine the witnesses in the case which was heard ex parte.

No fresh Vakalatnama was filed, and on behalf of the plaintiff it was urged that the stamp vendor was not available so late in the day. This explanation has not been accepted by the Munsiff. The name of Rai Jang Bahadur however, happened to be in the body of the Vakalatnama along with the names of several other pleaders of the Bar. The plaintiff''s Am-mukhtear asked Rai Jang Bahadur to act on his behalf as pleader and Rai Jang Bahadur did give his consent. He then wanted permission of the court to sign the Vakalatnama which had already been filed.

This prayer made on behalf of the plaintiff for Rai Jang Bahadur to sign the Vakalatnama was refused, and the learned Munsiff passed the following order:-

"Pleader of the plaintiff does not appear. The suit is dismissed for default. There is no one to examine the witness in chief. Time 11-27."

Now, on behalf of the plaintiff it is urged in this Court that the order of the Munsiff is wholly without jurisdiction, illegal and irregular. It is said that he had no power to refuse Rai Jang Bahadur to accept the Vakalatnama and sign the same.

This contention appears to me to be borne by the law and the authorities on the subject. Order III, rule 4 (1) of the CPC requires :

"The appointment of a pleader to make or do any appearance, application or act for any person shall be in writing and shall be signed by such person or by his recognized agent or by some other person duly authorised by power-of-attorney to act in this behalf."

This rule was complied with inasmuch as there was a written Vakalatnama filed on behalf of the plaintiff as executed by his Am-mukhtear under a registered power of attorney. This Vakalatnama was accepted by Moulvi Abdul Aziz and was already filed in Court. Rai Jang Bahadur was also there on the Ijlas; the Am-mukhtear and the plaintiff''s son engaged him as the pleader and he accepted the same. His name being already in the Vakalatnama he was competent to sign the same in accordance with the rules prescribed by the High Court.

Formerly, it was held in some cases that even the signature of the pleader is not essential provided his name is in the body of it. However, in 1914 the Calcutta High Court (which is followed by this Court) prescribed the rules on the subject : vide Chapter XI, rule 46 of the General Rules and Circular Orders.

Clause (b) of the rule requires that,

"A pleader accepting a Vakalatnama purporting to be executed by his client in person is bound to satisfy himself that it was so executed. When it purports to be executed by a third party on behalf of his client, he is bound to ascertain that such person has been duly empowered by the client to appoint a Vakil, and has himself executed the Vakalatnama."

Clause (c) requires that,

"No Vakil or pleader shall receiver Vakalatnama from any person other than the party himself, or his recognized agent, or a person duly authorised by power-of-attorney to act in this behalf or his servant or relation or a pleader or Vakil or Mukhtear specially authorised in writing in that behalf."

Clause (e) says that,

"When a Vakalatnama is filed by a Vakil or pleader, he shall endorse on the back of it, the date of acceptance, the name of the person from whom it is received, and if such person is neither the client himself nor a Vakil, pleader, or Mukhtear, shall state the precise nature of the authority with date of that person."

Clause (f) says :-

"A Vakalatnama which has been filed in Court may be subsequently accepted by a Vakil or pleader whose name appears in the Vakalatnama at the time when it was first filed; in the case of such subsequent acceptance, an endorsement shall be made as in the case of the first acceptance."

I have considered all the authorities cited by the Munsif on the subject, namely, Shama Prasad Ghose v. Taki Mullik (1901) 5 C.W.N. 816, Jogesh Chandra Gupta, In re (1913) 20 C.W.N. 283=33 I.C. 831 and Mohesh Chandra Addy Vs. Panchu Mudali, .

As to the recognised practice upon the subject, reference may be made to 19 C. W. N. 25, 26 Notes. This has been referred to in the case Mohesh Chandra Addy Vs. Panchu Mudali, . In the matter of two Pleaders (1917) 2 P.L.J. 259 it is observed by a Special Bench of this Court that the Court can only object to a pleader appearing in a case when he does not comply with the aforesaid rule on the subject of the acceptance of Vakalatnama, that is to say, when the pleader does not sign the Vakalatnama and record the endorsement required by clause (e) and (f) of rule 46 of Chapter XI, of the General rules and Circular Orders.

The pleader in the present case Rai Jang Bahadur was ready to make the necessary endorsement. The Munsif refused it only on the ground that a fresh Vakalatnama was not filed and the Vakalatnama already filed was not sufficient. The refusal was against the express provisions in rule (f) which says,

"A Vakalatnama which has been filed in Court may be subsequently accepted by a Vakil or pleader whose name appears in the Vakalatnama at the time when first filed; in the case of such subsequent acceptance an endorsement shall be made as in the case of the first acceptance."

The argument advanced by the learned Munsif appears to be very ingenious indeed. He says,

"He did not appoint him his Vakil from before. He appointed Rai Babu Jung Bahadur orally. He did not appoint him to be his Vakil by Vakalatnama. At the time he executed his Vakalatnama he intended to appoint as his Vakil only the person or persons of whom he took or he intended to take signatures. At the time of appointing Mr. Abdul Aziz as his Vakil he had no intention to appoint any other Vakil. He only gets signature of the Vakil whom he appoints at the time of executing Vakalatnama."

We are not here to investigate into the intentions of the parties. The fact is that names of various pleaders including that of Rai Jung Bahadur were in the Vakalatnama, and obviously it was with a view to get the acceptance of any of the pleaders whose names appeared in the Vakalatnama when an emergency would arise. The names of other pleaders than the one who was engaged and accepted at the time are only mentioned with a view to obviate the necessity of filing a fresh Vakalatnama; else there was no meaning in encumbering the Vakalatnama by putting down a number of pleaders'' names if when subsequently in appointing the pleaders named in the Vakalatnama fresh Vakalatnamas were necessary. But we are relieved from going into the intention of the parties in the case when the rule expressly says that a Vakalatnama once filed in Court may be subsequently accepted by a Vakil or pleader whose name appears in the Vakalatnama. The Court has only to see whether the name of the pleader proposed 10 be appointed appears in the Vakalatnama or not, and if his name does appear then the pleader is entitled to sign the Vakalatnama and appear and act in the case. Again, apart from the question whether Rai Jung Bahadur could or could not be permitted to sign the Vakalatnama in question, there was no default on behalf of the plaintiff when there was a duly authorised agent with a registered power-of-attorney present in Court with his witness, and the order dismissing the suit was bad in law; Order III of the Code of Civil Procedure. This agent had signed and verified the plaint, had appointed Vakils and was looking after the case. The Munsif could have, with his assistance, examined the witness which would have taken only a few minutes, or should have adjourned the case as it was taken up so late in the day, instead of disposing of it at 11-27 A. M. particularly when the plaintiff''s pleader had filed Hazri and left the Court at 10-30 A. M. The plaintiff only wanted to use the record of right and to examine only one witness. The zeal of the Munsif does not rest there. While hearing the application for setting aside the order of dismissal under Order IX, rule 4, two witnesses were examined on behalf of the plaintiff, namely, Lachmi Prasad, Am-muktear, and Moulvi Abdul Aziz, pleader, who was engaged originally to act in the case. Naturally the evidence-in-chief was very short but the cross-examination was by the Munsif himself, as nobody appeared to oppose the application, and that appears to be too searching and inordinate, and the judgment rejecting the rehearing petition also appears to be pretty long. The learned Munsif seems to have been carried away in this case from the beginning to the end more from vindicating his own view of the technical point as to the right of a pleader signing the Vakalatnama as filed in Court than from the justice of the case. He would have been well advised had he reserved this point for a more appropriate case. In any view the discretion used in this case by the Munsif both in dismissing the suit and not restoring it was not proper.

The result is that I set aside the order of the Munsif under Order IX, rule 4, and restore the case to its original file to be disposed of in accordance with law.