Shyam Sunder Koer vs Rahmatunnissa and Another

The question is whether the appeal presented on 28th October 1927, is valid or not. The memorandum of appeal was signed and presented by Mr. A.B. Mukherji, who was Government Pleader at that time, with a vakalatnama containing an endorsement on the back of it "Received from the Manager, Majhouli Wards Estate and accepted." Underneath this endorsement Mr. A.B. Mukherji has signed: "Abani Bhushan Mukherji, Government Pleader," and "dated 28th October 1927." The front page of the vakalatnama, which contains the appointment of vakils, is a printed form and is meant to be completed by filling in the number and name of the case, names of parties and the vakils appointed, and by making other corrections according to the circumstance of the case, such as I/we and my/our, etc. In this form the number of the case "F.A. No. 192 of 1927" and the names of parties.

Maharani Shyam Sunder Kuer, Appellant v. Bibi Rahmatunnissa, Respondent

have bean put in, but the other necessary corrections have not been made to suit the circumstance of the case nor have the names of vakils been stated in the margin of the vakalatnama, although the vakalatnama states that the names of the vakils would be "noted in the margin, etc." The vakalatnama was executed by the then manager, Court of Wards, Mr. Shyama Charan Ghosh, in the margin as follows:

Vakalatnama Shyam Charan Ghosh, Manager, Court of Wards, Saran.

Mr. Shyama Charan Ghosh retired and in his place Mr. Syed Abdul Majeed was appointed Manager of Saran Court of Wards. Mr. A.B. Mukherji also ceased to be the Government Pleader and in his place Mr. Shiveshwar Dayal was appointed Government Pleader. So a fresh vakalatnama had to be filed by the Court of Wards appointing Mr. Shiveshwar Dayal in place of Mr. A.B. Mukherji. That vakalatnama is dated 16th December 1930, and was actually filed on 5th January 1931. In it in the margin on the left side the vakils appointed are stated to be Government Pleader, High Court Patna, and Government Advocate, High Court, Patna. On the right side the vakalatnama is executed in the following manner:

Syed Abdul Majeed, General Manager, Saran Wards Estate,

and on the back the acceptance of the vakil runs as follows:

Received from the General Manager, Saran Wards Estate, and accepted. (Sd.) Shiveshwar Dayal, Government Pleader, 5th January 1931.

This vakalatnama is free from any defect.

4.The contention however is that the previous vakalatnama filed by Mr. A.B. Mukherji with the memo of appeal was defective and invalid, and consequently the memo of appeal was also invalid. We have considered the facts, the law and the authorities on the subject. The Government Pleader relies upon Chhayunnessa Bibi v. Basirar Rahman [1910] 37 Cal. 399, Mohfoozul Haq v. Mazkorul Haq 41 Ind.Cas. 685 and Shambhu Nath v. Badri Das AIR 1921 All. 210. Mr. N.N. Sen relies upon Ram Rup Agrahri and Others Vs. Naik Ram , Mohammad Ali Khan v. Jasram [1913] 36 All. 46, Kunj Behari Singh v. Sheodahin Pandey AIR 1922 Pat. 504 , (Sheikh) Abdul Ghaffar and Another Vs. F.B. Downing and Others, and Sheikh Palat v. Sarwan Sahu 55 Ind.Cas.271. There can hardly be any doubt that the vakalatnama filed by Mr. A.B. Mukherji on 28th October 1927, was valid. The endorsement on the back of it clearly shows that the Manager, Court of Wards, appointed Mr. A.B. Mukherji as vakil, for the vakalatnama was received from the Manager himself and it was accepted by Mr. A.B. Mukherji. The aforesaid endorsement in itself creates a valid contract or agreement between the Manager and Mr. A.B. Mukherji, and it was a sufficient authority for Mr. A.B. Mukherji to act in the case and to present the memo of appeal. The body of the vakalatnama describes the powers given to the vakil by the executant, and whoever that vakil may be he was authorized to act and appear on behalf of the Manager, Court of Wards, who duly executed the vakalatnama by signing it as stated above.

The omission of the name of Mr. A.B. Mukherji from the margin of the vakalatnama on the front page of it was rectified by the endorsement on the back of it, and Mr. A.B. Mukherji did act in consonance with the agreement inasmuch as he filed the memo of appeal duly signed by himself.

It is dear from the endorsement on the back of the vakalatnama and the execution thereof on the front page that the omission of the name of Mr. A.B. Mukherji from the margin on the front page of the vakalatnama was merely clerical and by inadvertence, as also the omission to strike out I or We, etc., from the body of the vakalatnama. The vakalatnama in question has not contravened the provisions relating there to contained in Order 3, Civil P.C. Rules 2 and 4 do not make such a vakalatnama invalid. Those rules simply forbid a pleader from acting in any case unless he had been duly appointed by the client. Here by the vakalatnama in question Mr. Mukherji was duly appointed as the endorsement on the back of it as well as the execution on the front page of the vakalatnama show. Therefore the vakalatnama in question was valid and the appeal was properly presented. Whatever defect there might have been, it was cured by the subsequent vakalatnama filed by Mr. Shiveshwar Dayal on 5th January 1931.

In these circumstances the appeal is properly filed and there is no occasion for invoking the aid of Sections 148 and 151, Civil P.C., or Sections 5 and 14, Limitation Act. Even if there was any such occasion the Court has ample powers u/s 151 to deal with the question and to condone the formal defect in the vakalatnama.

The next question is the setting aside of the abatement of the appeal with regard to the deceased respondent 2 and substituting her heirs. The reasons for not bringing the heirs of the deceased respondent 2 on the record in time have been set forth in the sworn petition filed on behalf of the appellant, and there is no counter-affidavit challenging the same. The reasons appear to be good and are accordingly accepted, and the abatement is set aside, and the names of the heirs of the deceased respondent 2 be substituted.