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Judgment
Shiv Narayan Dhingra, J.—The brief facts relevant for the purpose of deciding this petition are that petitioner company had filed a suit for possession against one Sh. Chunni Lal in respect of quarter No. 101 at Scindia Cottage. During pendency of the suit, Chunni Lal expired on 16th December, 1989 whereupon his legal heirs, i.e., his wife and two sons were brought on record. A decree for eviction was passed on 30th April, 2003 by the Civil Judge against all the legal heirs of Chunni Lal. The legal heirs collectively preferred an appeal against the judgment and decree before the Court of ADJ. This appeal was disposed of on 8th December, 2003 on the basis of a compromise between the parties and 2 years time was granted in terms of the compromise to the appellants including respondent No. 3 for vacating the premises. The two years time expired on 8th December, 2005. After expiry of this 2 years'' time the respondent No. 3 filed an application under Order 41 Rule 19 CPC read with Section 5 of Limitation Act for re-admission of the appeal and for condonation of delay in filing application. The respondent No. 3 took the ground that the application under Order 23 Rule 3 CPC read with Section 151 for compromise was moved before the Appellate Court by her mother and other brother in collusion with the petitioner, without informing him and the Court allowed the compromise and dismissed the appeal as withdrawn. He had not singed the aforesaid application neither filed an affidavit and he had also not instructed his counsel to withdraw the appeal. Thus, the compromise entered into between the petitioner and the appellants was not binding on him. The statement made by his counsel in the Court on his behalf was without his instructions and consent.
This application was contested by the petitioner who refuted the charge of collusion and stated that compromise was voluntarily entered into between the parties. No explanation was given by the appellant as to why he did not approach the Court immediately after the appeal was disposed of on 8th December, 2003. There was an unexplained delay of more than 2 years in filing the application and the applicant/respondent had also not preferred any action against his counsel or against his mother and brother who, according to him, acted contrary to his instructions. The Appellate Court framed the following issues:
Whether the application has sufficient and reasonable cause for condonation of delay in moving the application ?
Whether the applicant had not given his consent to his counsel to withdraw the appeal?
Discussing both the issues together, the learned ADJ came to conclusion that appeal was filed by Mr. P.K. Singhal, Advocate on behalf of applicant since he was the Advocate of the appellants before the Trial Court.
In that very capacity he filed the application under Order 23 Rule 3 CPC. The applicant was minor when he was impleaded before the Trial Court as successor of Chuni Lal. He did not execute any separate Vakalatnama in favour of Mr. P.K. Singhal, Advocate when he became major. Mr. P.K. Singhal, Advocate was engaged by deceased father of the appellant. Mr. P.K. Singhal, Advocate was not engaged independently by Smt. Sadhna, widow of Chunni Lal or by Suraj and Neeraj, the other two brothers. Therefore, Mr. P.K. Singhal did not have valid authority on behalf of any of the appellants to act as an Advocate. Since Mr. P.K. Singhal could not act on behalf of the appellants in terms of Order 3 Rule 4 CPC, as he had not been appointed by a written document, therefore he was not an Advocate of the applicant and he had no authority to enter into compromise on behalf of the applicant under Order 23 Rule 3 CPC. The application and the compromise filed by Mr. P.K. Singhal in the capacity of pleader was not binding on the applicant and therefore the Trial Court observed that the appeal was liable to be revived.
On the question of limitation, Trial Court observed that since the compromise was the basis of disposal/withdrawal of appeal, the question of limitation was not relevant, in view of the facts and circumstances. He allowed the application and revived the appeal.
It is apparent that the order of the Trial Court is in ignorance of the law and shows total lack of application of mind. The Trial Court had not given finding on either of the issues framed by it. Holding that advocate was not competent to enter into compromise, the Trial Court was supposed to decide the application in light of Order 41 Rule 19 CPC. Order 41 Rule 19 CPC reads as under:
Re-admission of appeal dismissed for default.- Where an appeal is dismissed under Rule 11, Sub-rule (2) or Rule 17, the appellant may apply to the Appellate Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.
If Mr. P.K. Singhal was not the pleader of the parties duly appointed and had no authority to act on behalf of the appellant as is held by the Trial Curt, the appellant was himself supposed to attend the appeal and to prosecute the appeal and he had no reason not to attend the appeal and leave it to someone who was not authorized. The appeal was dismissed on 8.12.2003 after compromise. The application udner Order 41 Rule 19 CPC was made on 8.12.05. The applicant was to prove that he was prevented by a sufficient cause from appearing in the Court on 8.12.2003 and thereafter. In his application he had stated that he had strained relations with his mother and brother because he conducted love marriage without their consent and because of this love marriage his mother and brother entered into a collusion with the petitioner. His testimony shows that he got married on 2nd July, 2002, that is much prior to passing of the decree by the lower Court. The decree of eviction was passed on 30th April, 2003. Despite this love marriage and strained relations, he preferred a joint appeal with his mother and brother. In his testimony, in order to overcome this he stated that his relations with mother and brother were not cordial since August, 2003 (The appeal was preferred prior to August, 2003), but he attended the appeal proceedings only till July, 2003. Thereafter, he did not attend the appeal proceedings. He has not given a single reason why he did not attend the proceedings despite having strained relations with his mother and brother and more so when Mr. P.K. Singhal, who was looking after this appeal had not been appointed by him. He has not given reason why he did not make any enquiry about the appeal from July, 2003 to December, 2005, when he was enjoying the premises because of the compromise. It is obvious that the Trial Court had not only overlooked the provisions of Order 41 Rule 19 but also brushed aside the entire evidence and passed an illegal order.
The observation of the Trial Court that the question of limitation was not relevant is very strange. It is not stated why it was not relevant. It was not the case of the appellant that he was aware of the compromise. Since he was not aware of the compromise and it has been held by the Court that he had not engaged Advocate Mr. Singhal to act on his behalf, there was no reason for the Court to observe that question of limitation was irrelevant. In fact it was obligatory on applicant to prove that he was prevented by a sufficient cause from appearing before Appellate Court. The basic requirement of Order 41 Rule 19 CPC has not even been addressed by the Court and application has been allowed, by brushing aside the issues.
I consider that the order of the Trial Court suffers from material illegality and is without jurisdiction, Trial Court cannot brush aside the issue as well the evidence saying that the issue is irrelevant. There is no evidence on record supporting the basic requirement of an application under order 41 Rule 19 CPC.
It is apparent that the respondent enjoyed the premises because of compromise and when the turn came for handing over the possession, a false plea was raised by the respondent. The reasoning of the Trial Court is also strange. On one hand the Trial Court has held that Mr. P.K. Singhal has no authority even at the stage of Trail Court to act on behalf of the respondent No. 3 as no Vakalatnama was signed in his favour, on the other hand, the appeal filed by Mr. Singhal on behalf of the respondent was considered as a valid and good appeal and was revived. If Mr. P.K. Singhal has no authority as has been held by the Trial Court, the respondent No. 3, i.e., applicant alone was responsible for attending the Appellate Court and arguing his case and filing applications etc. He had no reason to absent from the Appellate Court and he had no reason to take the plea that he learnt about the dismissal of the appeal only in December, 2005, when the respondent asked him to vacate the premises in terms of compromise.
The order of the learned ADJ is liable to be set aside. The order is hereby set aside. The application made under Order 41 Rule 19 CPC by respondent No. 3 is hereby dismissed.