LAL SINGH Vs. HARYANA STATE

JUDGEMENT

(1.) THE sole question raised in this revision petition is whether the appeal filed by the minors through their guardian Trikha Ram through Mr. P. C. Mittal and Mr. S. K. Bhola, Advocates, in the absence of the power of attorney, was a valid appeal and could the error be rectified by producing a subsequent duly signed power of attorney. The question has arisen in view of the following facts :2. Trikha Ram guardian filed a suit for recovery of damages on account of the death of the mother of the minors caused by the defendants' negligence. The suit was filed in forma pauperis The application was presented in person which was disallowed by the trial Court. The petitioners preferred an appeal through Mr P. C. Mittal and Mr. S. K. Bhola, Advocates, with a note on the grounds of appeal that the Vakalatnama was already on the file. However, during the course of the pendency of appeal on May 27, 1988, it was pointed out on behalf of the respondents that there was no power of attorney executed by the appellants in favour of the counsel either on the file of the trial Court or of the appellate Court. 3. Trikha Ram filed the power of attorney on June 7, 1988, along with an affidavit that he already given the power of attorney to Mr. P. C. Mittal and Mr. S. K. Bhola, Advocates. 4. The appellate Court, after noticing the contentions and relying on Allah Bakhsh and Anr. v. Municipal Committee, Rohtak, A. I. R. 1925 Lah. 223, Pat Ram etc. v. Ekam Singh etc. , 1971 Cur. L. J. 294, Punjab Wakf Boards v. Kishan Chand, 1988 P. L. J. 102, Garib Chand v. Municipal Committe, Budhlada, (1979) 81 P. L. R. 341 and Secretary Notified Area Committee, Okara v. Kidar Nath and Ors. , A. I. R. 1932 Lah. 388 came to the conclusion that the petitioners' counsel had no authority to file the appeal without the power of attorney; and filing of the power of attorney after the expiry of limitation amounted to ratification of the act beyond the period of limitation, which is not permissible. 5. There is no quarrel with the proposition of law laid down in the authorities cited above. However, the learned counsel for the petitioners relied on Bihar State Electricity Board and Ors. v. Bhowra Kankanee Collieries Ltd. and Anr. , A. I. R. 1982 S. C. 60 wherein it has been observed that failure of appellant to file Vakalatnaroa in spite of Court's instruction amounts to non-compliance with procedural directions. Though it involves negligence, but costs is the panacea It was observed as under: "undoubtedly, there is some negligence but when a substantive matter is dismissed on the ground of failure to comply with procedural directions, there is always some element of negligence involved in it because a vigilant litigant would not miss complying with procedural direction more so such a simple one as filling Vakajatnama. " The facts and cirumstances of this case are squarely covered by the decision of the Supreme Court in Bhowra Kankanee Collierie's case (supra ). 6. In view of the peculiar facts of the case that the petitioners arc minors and it is for the Court to protect their interest, negligence on the part of the counsel though is unpardonable, but keeping the interest of justice in view, the revision petition is allowed. The case is remanded to the lower appellate Court to be decided on merits after hearing the counsel for the parties. Parties are directed to appear before the lower appellate Court on May 22, 1989. No order as to costs.