' This is a defendant's second appeal under section 100 of the C.P.C. Against the judgment and decree of the Addl. District Judge Sialkot dated 16-1-1989 dismissing the appeal of the appellants against the judgment and decree of the trial Court dated 26-1-1988.
2. The dispute arises out of a suit for specific performance of an agreement to sell filed by the respondent against the appellants who are five in number. This suit was decreed by the Civil Judge Sialkot on 26-1-1988. Aggrieved the appellants filed an appeal which was, however, dismissed by the Additional District Judge, Sialkot on 16-1-1989 without examining the merits of the claims of the parties on the solitary ground that the appeal had not been filed or presented by a duly authorised person.
3. Mr. Iftikhar Hussain, Assistant Advocate-General who has appeared on behalf of the appellants has raised two-fold contentions. Firstly, that the counsel who had signed the memorandum of appeal and presented it before the lower appellate Court namely Mr. Muhammad Ashraf Qureshi Advocate was the same who had represented the appellants before the trial Court in the suit filed by the respondent and as such the learned counsel had the authority to file an appeal on behalf of the appellants; secondly, that the defect in presentation of the appeal was a matter of procedure and at the most amounted to an irregularity not affecting the merits of the case and was curable by having signatures of an authorised person affixed on the appeal. Ch. Habib Ullah, Advocate appearing on behalf of the respondent defended the impugned judgment by arguing that the Assistant Director, Local Government and Rural Development, Sialkot, had no authority on behalf of the Government to engage a counsel or to file the appeal which was unauthorised and therefore, the Additional District Judge acted in accordance with law in rejecting the memorandum of appeal. The learned counsel relied upon Punjab Province v. Malik Shahbaz Khan 1980 CLC 857.
4. The ground which prevailed with the Additional District Judge in dismissing the appeal and holding it to be unauthorised was that the appellants had failed to produce any authority in writing on behalf of the Government by which the Assistant Director, Local Government and Rural Development, Sialkot was authorised to file the appeal on its behalf. Unfortunately, while coming to this conclusion the lower appellate Court completely lost sight of the fact that the appeal before it was not by the Province of Punjab alone but apart from it there were 4 other appellants and Assistant Director Local Government and Rural Development, Sialkot was an appellant (appellant No,4) in his own right. Consequently, at least to this extent the appeal filed by him could not be said to be unauthorised. This aspect of the case was totally overlooked by the lower Appellate Court.
' Similarly apart from the Province and its functionaries, the Chairman District Council, Sialkot was also one of the appellants.
4-A. From the record of the trial Court, it is clear that Mr. Muhammad Ashraf Qureshi, Advocate, who had filed the appeal was counsel for the Assistant Director, Local Government as also the Chairman District Council before the trial Court and a power of attorney duly signed by them in favour of the learned counsel is on the record of the trial Court. This power of attorney not only authorises the counsel to represent the Assistant Director Local Government and Chairman District Council before the trial Court but also empowered him to file an appeal before the appellate Court.
Under Order 3 rule 4 of the C.P.C. The power of attorney in favour of a counsel enures till its termination with the permission of the Court or till the proceedings are finally ended. There can be no dispute that the appeal is continuation of a suit and therefore the words `proceedings are finally ended' would embrace in themselves the proceedings before the appellate Court as well. No separate power of attorney was necessary in favour of the counsel who could have filed the appeal on the basis of power of attorney presented before the trial Court. If any authority is needed, reference may be made to Mt. Balqis Begum v. Shahzada Muhammad Hamdam and others AIR 1934 Lah. 973, K.L. Gauba v. Indo Swiss Trading Co., Ltd. AIR 1936 Lah. 500 and Rasul Shah v.
Diwan Chand and another AIR 1936 Lah.
583. In these circumstances, the learned Additional District Judge was clearly in error in dismissing the appeal as being unauthorised.
5. The other contention of the learned counsel for the appellants is also well founded. The provisions regarding the presentation of appeal/suit are procedural in nature and non- compliance thereof cannot be visited with the extreme penalty of dismissal of the cause. It is since long settled that any such defect is an irregularity and can be rectified by providing an opportunity to the concerned party to do so. In Mst. Karam Nishan v. Meharban All PLD 1959 Lah. 946 B.Z.
Kaikaus, J. (as he then was) observed that a case of presentation of appeal was similar to that of plaint and the mere fact that an appeal has not been presented by a person who at the time when he presented it was not armed with written authority from the party does not necessarily lead to the dismissal of appeal. The Supreme Court of Pakistan in Toor Gul v. Mst. Mumtaz Begum PLD 1972 SC 9 was pleased to observe that the omission of the name of the pleader from the body of Vakalatnama was an irregularity and not fatal to the case and such a defect could be remedied at any time irrespective of limitation. It D was further 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. In Muhammad Sarwar alias Feroze Ali v. Abdul Ghani and 7 others 1980 CLC 946, the question before a Division Bench of this. Court was as to whether presentation of an appeal by a counsel was valid when neither Vakalatnama nor the memorandum of appeal in favour of the counsel had been signed by the appellant and there was as such no authority in writing from the appellant. After exhaustive review of the case-law, it was that the defect was not fatal and was capable of being rectified.
6. From the analysis of the above precedents, it cannot be doubted that the Additional District Judge was clearly in error in holding that in the absence of any authorisation in writing the appeal was incompetent and he had no option but to dismiss it. As regards the decision of this Court in Punjab Province v. Malik Shahbaz Khan 1980 CLC 857, apart from the fact the appeal was dismissed in limine, the question as to whether the defect in presentation of appeal, could be rectified never came up for consideration before the Court. Be that as it may, as already observed, the appeal, in any case, on behalf of appellants Nos.4 and 5 was with authority and, therefore, could not have been dismissed. The Additional District Judge was under an obligation to allow an opportunity to the remaining appellants in the circumstances of the case, to remedy the defect.
' For the foregoing reasons, this appeal is accepted, the judgment and decree of the Additional District Judge is set aside with the result that the appeal shall be deemed to be still pending before him and shall be decided in accordance with law. The Additional District Judge shall allow the appellants Nos. 1 to 3 to rectify the defect by either signing the memorandum of appeal or presenting power of attorney in favour of a counsel duly authorised. The parties shall appear before the Additional District Judge, Sialkot on 1-3-1990 who shall make efforts to dispose of the appeal expeditiously. No order as to costs.