RAMRAO BAPU SAHIB DHOTE Vs. SANTOSHRAO PANDURANG

JUDGEMENT

(1.) MACNAIR , J.C. 1. The respondents urge that the memorandum of appeal has not been presented in accordance with law. It is admitted that the counsel who presented the memorandum held a power of attorney which contained a clause to the effect that a fresh power would be necessary to enable the counsel to act in an appellate Court. The appellant urges that as the pleader had been appointed to act for his client the appointment must be deemed in force until determined with the leave of the Court by a writing signed by the client or the pleader (Order 3, Rule 4, Clause 2 and Schedule 1, Civil P. C). Mr. Kinkhede for the respondents argues that the pleader has been appointed only for the purpose of performing certain acts, namely, all acts necessary for proceedings in the first Court. This appointment has not been determined and remains in force, but it does not authorise the pleader to file an appeal. In my opinion Mr. Kinkhede's argument must prevail. I took a different view in Civil Revision No. 393 of 1931: (Seth Madangopal v. Sambhya and Ors.), but I then overlooked the point now urged by Mr. Kinkhede, I remark, that in Saratram v. Atmaram , two Judges of this Court took a view similar to the one I now hold. In that case it was considered that a second grade pleader was appointed only for the purpose of performing acts in the original Court, as such a pleader could not act in the appeal Court, and it was held that the pleader had no authority to file an appeal in the High Court. I hold therefore that the appeal was not presented by an authorized person.

(2.) THE appellant may have intended to empower his counsel, Mr. Vaidya, to act for him both in the original and in the appellate Court. But he signed a vakalatnama which expressly confined appointment to acts necessary for proceedings in the first Court. Mr. Vaidya, filed the memorandum of appeal without authority almost: two years later when this was pointed out, he filed another power of attorney and it may be considered that the appeal was presented on that date.

(3.) IN Surendramohan Bay v. Mahendranath Banerji it was held that an inexcusable mistake of a legal adviser did not give the litigant the protection of Section 5, Limitation Act. In Maung Po Kyaw v. Ma Lay AIR 1929 Rang 116 it was held that though a bona fide mistake on the part of a pleader may be sufficient cause for admitting an appeal after time, it was necessary that the mistake should have been made in spite of due care and attention. A similar view was taken after discussion of authorities in our own Court in Vithia v. Sakhya (1909) 5 NLR 25. If Mr. Vaidya did not take steps to find out whether or not the appeal had been properly presented, he acted without due care and attention. If he did so, he delayed in the hope that an irregularity might escape detection ; this did not form proper cause for the delay in filing the appeal. The appeal must therefore be dismissed as barred by limitation: costs on the appellant: counsel's fee Rs. 50.