Shrichand vs District Judge and Others

V.K. Bist, J.—By means of this writ petition, the petitioner has challenged the order dated 07.05.2003 passed by the Additional District Judge/F.T.C. V Dehradun in Suit No. 160 of 1999, order dated 02.04.2004 passed by Additional District Judge/F.T.C. V Dehradun in Misc. Case No. 05 of 2003 as well as the order dated 14.05.2004 passed by the District Judge, Dehradun in R.C.A. No. 56 of 2004. The facts, as stated in the writ petition, are that the petitioner is landlord of the shop forming part of property No. 57 Block-II Aragarh, Dehradun. Arun Kumar Sharma was tenant under the said property, who died on 05.03.1996 leaving behind his wife and his minor sons. Petitioner filed a release application for the release of said property. Case was registered as P.A. Case No. 74 of 1998. Same was ordered to be proceeded ex-parte but subsequently order for ex-parte hearing was recalled on 10.12.1998. While recalling the order of proceeding ex-parte, the lower court/Prescribed Authority passed a conditional order to the effect that in case, the defendant/petitioner failed to file his written statement, the order for proceeding ex-parte would be cancelled. The case was ordered to proceed ex-parte on 06.01.1999. After the evidence of petitioner, case was decreed ex-parte on 12.01.1999 releasing the property in favour of petitioner (landlord). Thereafter respondents filed an appeal R.C.A. No. 56 of 2004. This appeal was filed by Sanjay Gaur, Advocate of the respondents on 10.05.1999 under his own signature without any Vakalatnama. It was stated in the memo of appeal that Vakalatnama of Sanjay Gour, Advocate was already in the lower court record. In the meanwhile, possession of the shop was given to the plaintiff/petitioner on 08.07.1999. On 07.05.2003 order was passed condoning the delay in filing appeal with cost of 200/-. Against the said order the plaintiff/petitioner filed a Review Application No. 05 of 2003 for review under Rule 22 of Rules enacted under U.P. Act No. XIII of 1972 which was dismissed vide order dated 02.04.2004. District Judge, Dehradun heard the appeal No. 56 of 2004 and admitted the same on 14.05.2004. Feeling aggrieved petitioner filed this petition.

Learned counsel for the petitioner submitted that inspite of his consistent objection, respondents did not care of filing Vakalatnama and putting signature on Vakalatnama after obtaining permission of the Court. This was not done. Therefore, defect was not cured. He submitted that order, Dehradun are not proper orders as same have resulted in the miscarriage of justice. Learned counsel for the petitioner further submitted that effect of not signing the memo of appeal, application u/s 5 of Limitation Act and filing of appeal through lawyer without Vakalatnama on record has the effect of there being no appeal in the eye of law and therefore, the application u/s 5 of Limitation Act could not have been allowed and similarly the appeal ought not to have been admitted. Learned counsel for the petitioner placed reliance on the judgment of Chhita (Defendant) vs. Jaffo (Minor) Through Abdul Aziz (Plaintiff) reported in 1981 A.L.R.J., 98, dated 14.05.2004 passed by learned District Judge, Dehradun and order dated 02.04.2004 passed by the Additional District Judge/F.T.C. Vth.

Mr. Ramji Srivastava, learned counsel for the respondents 2, 3 & 4 submitted that respondent No. 2 is a lady and after the death of her husband she is the guardian of respondents 3 & 4. She had no knowledge about the legal proceedings. He submitted that when she came to know about the ex-parte order, she filed an appeal before the court below which is based on true facts. He submitted that after breaking the lock of the shop, petitioner forcibly took possession of the shop, which is not a proper way to behave with the tenants. He further submitted that if there is any irregularity in filing the appeal, same is not so vital and can be ignored. He submitted that by filing Vakalatnama at subsequent stage, the defect stood cured.

Heard learned counsel for the parties.

Petitioner has challenged the order dated 07.05.2003 by which delay condonation application of the respondent was allowed and also the order dated 02.04.2004 by which his review application was rejected on the ground that since the appeal as well as delay condonation application was not signed by the respondents and appeal was filed though advocate without Vakalatnama, there was no appeal in the eye of law and application u/s 5 of limitation Act could not have been allowed. Order dated 14.05.2004 has been challenged on the ground that at the time of filing of appeal there was no Vakalatnama and, therefore, the order of District Judge dated 14.05.2004 admitting the appeal is illegal order and is liable to be set aside. I have carefully considered this submission. Though appeal was filed without Vakalatnama but it has come in the order of the learned District Judge that as soon as it came to the knowledge of the respondents the Vakalatnama was filed on 15.05.1999 in misc. case No. 05 of 1999. Learned District Judge held that non filing of Vakalatnama at the initial stage is merely an irregularity but same was subsequently rectified. The petitioner has also come up with the case that appeal as well as section 5 application was not signed by the appellant but he has not annexed any documentary evidence in support of this application. This submission of learned counsel for the appellant appears to be incorrect as in order dated 07.05.2003 it is mentioned by the court that the application 6ka (delay condonation application) supported by affidavit was filed by respondent No. 2. I do not find any illegality in the order impugned. Irregularity committed by the respondents at the time of filing appeal stood rectified. Case law cited by the petitioner is of no help as in that case the plaintiff did not mention the name of the advocate in the Vakalatnama. In that case the court held that where the name of the pleader has been omitted from the body of the Vakalatnama, there is no valid appointment. In the present case Vakalatnama was valid but was filed subsequently.

In view of above discussion, the writ petition is dismissed. However, the lower appellate court is directed to decide the appeal No. 56 of 2004 very expeditiously, preferably within a period of three months from the date of production of certified copy of this order. No order as to costs.