Nehru Yuvak Kendra Sangthan vs Darshan Singh and Another

N.C. Jain, J.—This appeal has been filed by the defendant-appellant against the judgment and decree of the appellate Court, dismissing the appeal on the ground that the same was not validly instituted as it was neither signed by the appellants nor any Vakalatnama in favour of the counsel was filed.

After hearing counsel for the parties, I am of the view that the view taken by the Additional District Judge, is not sustainable. In Sastri Yagnapurushadji and Others Vs. Muldas Bhudardas Vaishya and Another, where memo of appeal and vakalatnama were presented in the High Court, by the Assistant Government Pleader working in the same office and the irregularity was not noticed by the Registrar and the appeal was admitted, it was held that no party could be made to suffer for mistake of the Court or its office, if the memo of appeal was technically irregular. In the present case, it has not been disputed before me that the appeal was admitted and notice was issued to the respondent by the appellate Court, inspite of the fact that it was brought to the notice of the Court, by the Superintendent that power-of-attorney was not attached but only memo of appearance was filed. After the defect was noticed by the Court, the Court or the Superintendent, should have insisted upon the production of Vakalatnama dully executed by the appellants In somewhat similar circumstances it was held by the Madras High Court in Kaliyur M. Srinivasachariar v. The Chairman Taxation Appeals Committee A. I. R. 1964 Mad. 235, that if the appeal was defective in any manner, it was the elementary duty of the body entrusted with the hearing of the appeals to have intimated the appellant and to have permitted the defect to be rectified

The fact in Pat Ram etc. v. Ekam Singh etc. 1971 Cri L.J 294, were somewhat distinct Moreover, the appeal having been dismissed on the point of technicality alone, this Court is dismissed to put seal on the judgment.

In the light of the observations made above, this appeal succeeds aid the same is hereby allowed. The judgment and decree of the Additional District Judge is set aside and the case is remanded to the appellate Court, for fresh decision on merits. Since the plaintiff respondent has been dragged into litigation right upto the High Court, without any fault of his the appellant would bear the costs of litigation before this Court and the costs of proceedings before the Additional District Judge, which culminated into the judgment dated 14-2-1989. Costs of both tae Courts stand quantified at Rs. 1,000/-.

The appellants would see to it that before hearing the appeal on merits, a duly executed power-of-attorney, in favour of the Advocate is filed.

The parties through their counsel are directed to appear before the appellate Court, on 7-1-1991. Since the respondent is stated to be out of job, it would be in the interest of justice that direction be issued by this Court, to decide the appeal expeditiously. I therefore, direct the appellate Court, to decide the appeal within a period of four months from today. A copy of this order alongwith the records be despatched forthwith, so that the same are made available on the aforesaid date.