1. ' 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 the judgment and decree was filed on 15th May, 1958 by Ch. M. A. Rehman, Advocate, in the Court of the District Judge, Gujranwala.
2. It 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 dates and finally it was heard and disposed of on 23rd April, 1959.
3. ' It may be mentioned that on many of the aforesaid dates, the plaintiff appellant used to be present in the Court.
4. ' 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-affidavit 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 his 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 III, 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-appellant. 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.
5. ' 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.
6. ' 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-respondents, the appeal had become time-barred.
5. The question which arises for consideration is whether the presentation 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 0. 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 complied with, A 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 III, 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 entertain able 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.
7. ' 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. Rehman, Advocate, was duly authorised though orally by the appellant to present his appeal. It was held in Habeeb and others v. Naush Ali and others (1) 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 dismissed 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 HI, C.
8. P. C. It was not barred by time.
9. ' In Khaira v. Nathu and others (2) 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 (3) and Basda v. John Smith (4) 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 Mathra Das Bishambar Nath v. The Firm Rama Lal Kanshi Nath (5) that omission to sign a memorandum of appeal by oversight 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 {{TABLE}}
(1) 1921 I C 444 (2) AIR. 1920 Lah. 212
(2) 1944 I C 28 (4) 22 All. 55
(5) AIR 1923 Lah. 402 {{TABLE}} ' was not signed by the counsel by another sight therefore, there was sufficient cause for extension of time under section 5. The delay in filing the appeal was condoned by the High Court itself in the given circumstances.
10. ' In Ram Lal v. Budho Mal (1) vakalatnama filed alongwith 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.
11. The preliminary objection was raised to that effect by the opposite party but the same was repelled on the ground that it was of very technical nature and further the Advocate while accepting the vakalatnama 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 considered to be a minor one which did not entail major penalty. In Mst. Karam Nishan v. Mehrban All Shah (2) 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 Sirajul-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.
12. ' Similar position obtains in Mst. Azra Begum v. Piran Ditta (3). 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 XLI, 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
(1) AIR 1927 Lah. 618 (2) PLD 1959 Lab. 946 (3) PLD 1967 Lah. 807 through the Secretary, Ministry of Industries and Natural Resources (1) 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 circumstances of the case showed that Mr, Mohammad Akram, Advocate, was engaged by the respondent to act on its behalf. In Toor Gui v. Mst. Mumtaz Begum
(2) 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.
13. The above discussion would show that main purpose of the relevanti provisions as contained in Order Ill, 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 concerned. The provision that authority in favour of a pleader should be in1 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.
14. ' In the present case, as mentioned above, Ch, M. 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 HI 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.
15. 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. Rehman, as counsel, the situation might have been different.
16. 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.
17. ' 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 circumstances of the case.
(1) PLD 1909 Kar 210.
(2) PLD 1972 SC