RAGHUNATH DEVI Vs. ADMINISTRATOR SRINAGAR MUNICIPALITY

JUDGEMENT

(1.) THIS revision is directed against the order of the Addl. District Judge at Srinagar setting aside under R. 4, O. 9 of the Civil Procedure Code the dismissal of a suit for non -appearance of parties. The Municipal Council Srinagar, which is the respondent herein, instituted a suit against the petitioner on 31 -12 -49 for possession of certain strip of land after demolition of the structure reared on it by the petitioner. After evidence on either side was duly adduced, the suit was posted to 6 -3 -58 for arguments. On that day neither the parties nor their counsel appeared in court and consequently the suit was dismissed under the provisions of O. 9, R. 3, Civil P. C. An application under O. 9, R. 4 for setting aside the order of dismissal of the suit was signed and filed on 4 -4 -58 by Shri R. N. Kaul, Advocate. The defendant resisted the application mainly on the ground that Shri R. N. Kaul did not hold a Vakalatnama of the plaintiff Municipality. Sri Kaul filed an affidavit averring that he had filed his Vakalatnama on behalf of the plaintiff Municipality and that he was therefore entitled to act and plead for the plaintiff. However, the Vakalatnama alleged to have been filed by Shri Kaul could not be traced; but the Addl. District Judge found no reason to doubt the veracity of Shri Kaul who also gave evidence on oath in support of the averments contained in his affidavit. The Court below however did not rest its decision entirely or even mainly on this ground. It held that even if Shri Kaul had not obtained a Vakalatnama from the plaintiff before he filed the application under O. 9, R. 4, it was only a curable irregularity which was cured by the subsequent filing of a proper Vakalatnama by him. The application preferred by Shri Kaul was therefore allowed by the Court below and the suit was restored to file. The defendant -petitioner has now come up in revision to this Court to challenge the correctness of this order.

(2.) MR . Sunder Lal, learned counsel for the petitioner, has vigorously urged that the application which was signed and presented by Shri Kaul was a nullity in the eye of law because Shri Kaul was neither a duly authorised agent of the plaintiff nor a pleader appointed by the plaintiff in writing as required by R. 4 of O. 3, Civil P. C. In support of this contention he placed considerable reliance on Nandamani Anangabhima v. Modono Mohono Deo, AIR 1937 Mad 239, and argued that the lower Court had no jurisdiction whatever to "entertain an application which was signed and presented by a person who had no legal capacity at all to do so. The learned counsel for the plaintiff -respondent has on the other hand contended that even if Shri Kaul did not have a Vakalatnama, the subsequent filing of a duly executed Vakalatnama by him cured the defect and rendered the application preferred by Shri Kaul perfectly valid and competent. We have now to examine which of these two rival contentions ought to prevail.

(3.) BASDEO v. John Smidt, ILR 22 All 55 was a case where a plaint in a suit was not signed by the plaintiff named therein or by any person duly authorised on his behalf. It was argued that the defect was fatal and made the plaint a nullity. But the contention was not accepted and the High Court held that the defect could be cured by amendment at any stage of the suit provided the plaint was in fact filed with the knowledge and on the authority of the plaintiff. The same view was taken by the Allahabad High Court in a later case reported as B. B. and C. I. Rly. Co. Ltd. v. Sivaji Mills Co. Ltd., Baroda, AIR 1927 All 514.