This will be read in continuation of short order dated 18-6-1989 through which the appeal was accepted and matter was remanded to lower appellate Court for decision in accordance with law.
2. The relevant facts for the disposal of the present appeal are that the appellant filed a suit to pre- empt sale in favour of the respondents. The respondents contested the suit. The suit was initially decreed by the learned trial Court on 5-3-75. However, the appeal of the respondents was accepted and case remanded for fresh decision by the lower appellate Court vide judgment and decree dated 23-7-81. The trial Court this time dismissed the suit vide judgment and decree dated 18-1-82. The appellant filed an appeal in the Court of District Judge, Muzaffargarh, who entrusted the same to one of his Addl. District Judges. This appeal was dismissed on the short ground that the appeal had not been presented by duly authorized person, therefore, was incompetent. This way the appellant was constrained to file the present appeal.
3. The appeal was admitted to hearing and notices issued to the respondents, who have entered appearance through Mian M. Zafar Yasin, Advocate and contested the appeal. I heard the learned counsel for the parties. The learned counsel for the petitioner argued that Mr. Rehmat A.I Alvi, was the Advocate of the appellant-plaintiff in the trial Court and appeal in the lower appellate Court was filed with his signatures, therefore, the same was competently filed. It is maintained that authority once given to a counsel will continue till it is determined. The learned counsel in this behalf has referred to Order III, Rule 4(2) and Order XLI, Rule 1 C.P.C. And relied on the case.
4. On the other hand, the learned counsel for the respondents after going through the record admitted the fact that Mr. Rehmat A.I Alvi was the counsel for the appellant before the learned trial Court too was not in his notice. He candidly conceded that in this view of the matter Mr. Rehmat A.I Alvi, Advocate was competent to rile the appeal but the learned counsel for the respondents argued that since uptill now there is no decree in favour of the appellant by any Court, therefore, it will be exercise in futility to remand the case to the lower appellate Court. On the other hand, the learned counsel for the appellant, has pointed out that in such circumstances the matter should be left for decision by the lower appellate Court in view of the observations of the Hon'ble Supreme Court in Sardar A.I's case. Following the decision of the Hon'ble Supreme Court, I left the matter open. This is end of this matter.
5. There is constant flow of matters to this Court where the appeals are dismissed by the lower appellate Courts or plaints, petitions or objections are rejected by trial Courts on technical ground like competency of the person signing the plaint or memorandum of appeal, defective verification, absence of power of attorney or signatures thereon. This necessitated this detailed judgment.
6. There can be a large number of objections as to the filing and presentation of plaints, memorandum of appeals etc. And number of objections as to the legality of the power of attorney but when the situation is analysed ultimately all such objections and defects are covered by the main category i.e, non-signing or defective signing of plaints, memorandum of appeals, petitions and powers of attorney.
7. Before proceeding any `further it is important to refer to various provisions dealing with the plaints, memorandum of appeals and powers of attorney. The same are incorporated in Orders III, IV, VI and XLI. C.P.C. The relevant Rules of these Orders are reproduced hereunder:-- Rule 4, Order III "No pleader shall 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 by his recognized agent or by some other person duly authorised by or under a power-of-attorney to make such appointment."
Rule 14, Order VI "Every pleading shall be signed by the party and his pleader (if any): Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf."
Rule 15(1), Order VI "Save as otherwise provided by any law for the time being in force, every pleading shall be verified on oath or solemn affirmation at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of case."
Rule I, Order XLI "Every appeal shall he preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith of the judgment on which it is founded."
8. There is a long chain of authorities on point. In this behalf reference can be made to the judgment of Honourable Supreme Court in the case of Ismail and another v. Mst. Razia Begum and 3 others (1981 SCMR 687). The leave to appeal was sought from the Hon'ble Supreme Court amongst others on the ground that the signatures of the respondents have been obtained on the plaint after expiry of one year and their suits were, therefore, barred by time. The relevant para of the judgment of Honourable Supreme Court refusing leave reads as under:--
9. Earlier to this the Honourable Supreme Court in the case of Toor Gul v. Mst. Mumtaz Begum (PLD 1972 SC 9) with reference to judgment of this Court in the case of Malik Sajawal Khan v. Deputy Commissioner, Sargodha PLD 1968 Lahore 527) held as under:--- "The real ratio of the decision was that a vakalatnama is not invalidated by the mere accidental omission of the name of the pleader from the body of the vakalatnama."
It was further held that the purpose of framing the rules is advancement of justice. The relevant portion of the judgment of the Honourable Supreme Court reads as under:-- "We find ourselves unable. To accept the view taken in the High Court that such an omission will by itself invalidate the vakalatnama. The rules flames: 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 operate so as to defeat the ends of justice."
10. This Court in the case of Karam Nishan v. Mehrban A.I Shah (PLD 1959 Lahore 946) dealt with a similar situation. There was objection before the District Judge. That appeal has not been properly presented. The objection was given effect and appeal dismissed. This judgment was impugned in this Court and it was held that non-compliance with the provisions of Order III Rule I CPC relating to presentation amounts only to an irregularity as non-compliance with some other provision relating to the pleadings. The next case in the series is M/s. Nabi Bakhsh and Sons v. Pakistan through the Secretary, Ministry of Industries and Natural Resources (PLD 1969 Kar. 210). In this case there was an award and objections were fried by the Government to the same. The objections were not signed. However, subsequently, an application was put in for permission to sign the objections. The same was allowed but the petitioner insisted and pressed its preliminary objection to the effect that the objections were not filed in accordance with the provisions of Order III C.P.C. Therefore, should not be accepted. The learned Judge after referring to whole of the case-law avail on the point proceeded to overrule the objection.
11. The reference can be made to the unreported case of Thai Development Authority v. Nisar Ahmad Qureshi Civil Appeal No. 85/65. In this case the objections were filed under the signatures of Legal Advisor and alongwith the objections power of attorney appended was of a Chairman, who had relinquished the charge some months prior to when the case came up to the Court. The objections were dismissed by the learned trial Court, appeal failed in this Court but the Hon'ble Supreme Court accepted the appeal of the TDA holding that the legal Advisor had the authority to represent the TDA and therefore, Power of Attorney was not necessary.
12. Then in the case of Shafiq Metal Works and 5 others v. Bank of Bahawalpur Ltd. (PLD 1973 Note 33 at p. 41), it was held that defective signing or presentation of a plaint by a person not holding power of attorney does not render such plaint void or nullity. These are irregularities which are curable by amending plaint. My learned brother Aftab Husain, J after referring to law and large number of precedents held that such type of defect can be cured by the party amending plaint on its initiative or by suo motu directions of Court ordering, the removal of such defect. Similarly, in the case of Australasia Bank Ltd. v. Abdul Aziz Jan and others (PLD 1983 Pesh. 64), according to the power of attorney in favour of the recognised agent of the Bank, there was a clause; according to which Wakalatnama and plaint have to be signed by two attorneys jointly whereas in this case one of the attorneys omitted to sign. The permission was allowed to affix signatures of others and reliance was placed on the cases of Shafiq Metal Works and 5 others v. The Bank of Bahawalpur Ltd. Gujranwala (PLD 1973 Note 33 at p. 41) and Muhammad Sarwar alias Feroze A.I v. Abdul Ghani and 7 others (1980 CLC 946).
13. In the case of Muhammad Sarwar appellant filed a suit which was dismissed. Then appeal was filed on behalf of the appellant by Ch. MA. Rehman but neither the memorandum of appeal nor the appeal was signed by the plaintiff-appellant. The same was, however, signed by the learned counsel. The appeal was ultimately dismissed ors the ground that Ch. M.A.Rehman did not hold power of attorney on behalf of the appellant and the memorandum of appeal was not signed by the appellant.
It seems that the LPA was accepted by this Court and it was held that the appeal was presented lawfully and properly and should be disposed of in accordance with the merits. In this judgment almost all the main judgments were taken note of and followed.
14. It is interesting to note that although it is necessary to sign and verify a plaint still it has never been rejected for these defects. The case of the appellant is, also, on the same looting, therefore, it sounds strange when there is objection as to the presentation of the appeal. In tire case of Ismail and another v. Mst. Razia Begum and 3 others (1981 SCMR 687) plaintiffs were all along prosecuting their suits with diligence and also appeared as their own witnesses.
PLD 1984 SC 12) held that failure to file power of attorney was no more than irregularity, which stood cured by subsequent filing while Supreme Court of India in the case reported as AIR 1906 SC 1119 held that omission to sign power of attorney was lust an irregularity and of no -legal consequences after the appeal has been admitted to regular hearing. The more recent cases are as under:--
(i) Haji Muhammad Rafiq v. Shahenshah Jehan Begum (PLD 1987 Karachi 180). The Karachi High Court interpreted the expression "signed by a person duly authorised" appearing in Order VI rule 14 C.P.C. And held that the expression is not restricted to written authorisation and even oral authorisation is sufficient. Defects in pleadings with regard to presentation, signing and verification are technical irregularities relating to matter of procedure, therefore, not fatal. The same was the view expressed in the case reported as AIR 1943 Calcutta 13 and AIR 1901 Bombay 292;
(ii) Sahib Dm Khan v Master Nasir Ahmad and another (PLD 1983 Peshawar 137). The signature was appended on Vakalatnama subsequent to the filing of the appeal. It was held that the defect stood cured ;
(iii) Abdul Ghaffar v. Jamaluddin (1986 CLC 747), Messrs United Bank Ltd. v. Messrs Amin Corporation Ltd. And others (1983 CLC 1559) Verification can be made by a person proved to the satisfaction of tip. Court to be acquainted with the facts of the case; and
(iv) Alamgir and 8 others v. Nasir A.I and 8 others (1983 CLC 375). The object of requiring every pleading to be signed by a party is to prevent as far as possible dispute as to whether the suit was instituted with plaintiff', knowledge or authority. This in fact clinches the whole Issue. Once the object of the provision is kept in view then there is no difficulty in interpreting the same.
15. The reference can also be made to AIR 1924 Lahore 296, AIR 1929 Lahore 759, AIR 1930 Bombay 511, AIR 1923 Bombay 44(1), AIR 1925 Madras 620, AIR 1986 Lahore 223, PLD 1968 Lahore 527 and PLD 1973 Note 33.
10. The result is that the defects in the pleadings, applications, memorandum, of appeal with regard to presentation, signing and verification are technical irregularities relating to matter of procedure and same cannot furnish basis for rejection of plaint, application or memorandum of appeal. The same can be rectified at any stage of the proceedings.
There is no order as to costs.
H.B.T./S-504/L Appeal accepted.