MT BINDA KUER Vs. LALITA PRASAD CHAUDHARY

JUDGEMENT

(1.) These are applications for leave to appeal to His Majesty in Council from a decision of this Court which decided two first appeals, that is to say First Appeals Nos. 228 and 250 of 1928. The matter for our decision is whether the applications were properly lodged and secondly whether any extension of time should be given under Section 5 of the Limitation Act and under Order 3, Rule 2 of the Code of Civil Procedure. The litigation began by a suit in the trial Court in which the plaintiffs were successful and the suit was decreed. Some of the defendants launched appeal No. 228 of 1928 to the High Court. Others of the defendants launched appeal No. 250 to the High Court. The judgment of the High Court in the case of the two appeals which were heard together was as to First Appeal No. 228 of 1928 that the appeal was allowed and the suit was dismissed.

(2.) As to First Appeal No. 250 of 1928 all the defendants appealed and the appeal was successful and the suit was entirely dismissed. The plaintiffs now seek leave to appeal to His Majesty in Council. There were four plaintiffs who in the mon March, filed two petitions numbered respectively 7 and 8 for leave to appeal and notice was served upon all the defendants. Some of the defendants in both cases have been represented before this Court on an objection to the granting of the certificate for leave to appeal to His Majesty in Council. Others of the defendants though having received notice raise no objection. The only objection which need be considered concerns the vakalatnamas upon which the applications were launched.

(3.) In the first instance, the learned Advocate for the plaintiffs-appellants lodged vakalatnamas signed by one Sianandan who was one of the plaintiffs on behalf of the other three appellants. We found on a reference to the office that this has in this Court been the practice hitherto. Nevertheless the learned Advocate on behalf of the respondents whom he represents objected under Order 3, R.2 of the Code of Civil Procedure that the vakalatnamas so lodged were irregular. The rule is as follows: The recognized agents of parties by whom such appearances, applications and acts may be made or done are: (a) persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties. R. 1 of Order 3 is as follows: Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting on his behalf: Provided that any such appearance shall, if the Court so directs, be made by the party in person.