KERALA KSHETRA SAMRAKSHNA SAMITHI Vs. VELAYUDHAN

JUDGEMENT

(1.) In a suit for injunction the defendant is the Kshethra Samrakshana Samithi represented by its President. Trial Court decreed the suit for injunction. By the time when the appeal was filed there was a change in the Presidentship. Appeal was by the new . President on behalf of the Samithi. Appeal was admitted, numbered and process issued. Respondent entered appearance and some interlocutory applications were heard and posted for orders. On the date to which the appeal was not posted but the applications alone were posted for orders, the learned District Judge found from the file that the appeal was filed by a wrong person and the Advocate filed only a memo of appearance and did not file vakalat. Without giving an opportunity to the appellant for hearing he dismissed the appeal itself along with the applications for the above reasons alone basing on the decision in Manuel v. Thomas ( 1977 KLT 597 ). Second appeal is by the defendant.

(2.) The party and counsel might have thought that a memo of appearance is sufficient and a vakalat is not required. Manuel's case (1977 KLT 597) laid the law otherwise and that is binding. If that defect is not curable by supplying the omission, it could be cured at least by returning the appeal and connected papers to the counsel or party for representation with a vakalat as was done in Manual's case (1977 KLT 597) itself. If the suit or appeal is filed by a bona fide mistake in the name of a wrong person that is also a curable mistake by resorting to the provisions of O.1 R.10 or O.23 R.10, as the case may be, of the Code of Civil Procedure. In such cases resort to the drastic step of dismissing the suit or appeal and that too on a date to which the suit or appeal is not posted and without giving the plaintiff or appellant an opportunity of being heard, is not conducive to justice. Courts are existing for dispensation of justice and not for its denial on technical grounds.

(3.) The attitude of the court must always be to do justice to the persons who approach it. If there is a curable mistake the party should be given an opportunity for that purpose after informing him about the mistake. That is what R.32 of the Civil Rules of Practice also say even though the said rule may not be squarely applicable to the present case. Even then the underlying principle will apply. The appeal was admitted and registered as if there was no defect. If there was any defect; it was for the court or the office to point it out and give the party or counsel an opportunity to correct. Without doing so the appeal was numbered and registered and process issued. Applications were then heard. The mistake of court should not prejudice any party as was laid down by the Supreme Court in Yagnapurushadasji v. Muldas ( AIR 1966 SC 1119 ). The appeal could only have been returned for presentation after curing the defect. What was required was only supplying a proper vakalat and substitution of the new President. The penal consequence of dismissal of the appeal would not have followed.