The State of Himachal Pradesh etc. vs Parveen Kumar

D.B. Lal, J.—In this Letters-Patent Appeal a preliminary objection has been raised which needs our immediate attention. The appeal has been filed on behalf of three Appellants, namely, the State of Himachal Pradesh, the Principal, Medical College, and the Himachal Pradesh University. The learned Advocate-General has signed the memorandum of appeal on behalf of the three Appellants. There is no manner of doubt that he represented the State of Himachal Pradesh and the Principal of the Medical College (Appellants No. 1 and 2). He did not represent the Himachal Pradesh University (Appellant No. 3) and as such the appeal was not filed on behalf of the Appellant No. 3. The Respondent Parveen Kumar raised the preliminary objection that the decision of the Court-has become final against the Himachal Pradesh University and since that party has not filed the appeal, there is likelihood of conflict of decisions and the entire appeal has become infructuous and should be dismissed. The learned Advocate-General contended that he duly represented the Himachal Pradesh University although some irregularity was committed by him, as he did not file the Vakalatnama on behalf of the University. Accordingly he filed a fresh Vakalatnama on behalf of the University which he did on 7-9-1973. The appeal itself was filed on 18-6-1973. In his affidavit, the learned Advocate-General contended that he was asked by Shri Inder Singh standing counsel for the University to file the appeal and he had accordingly filed the same on behalf of the University as well. In support of this contention, the learned Advocate-General relied upon a letter dated 6-6-1973 written by Shri Inder Singh and according to him this letter gave him the authority to file the appeal on behalf of the University. It is, however, to be noted that Shri Inder Singh, despite all this, has himself chosen to file independent memorandum of appearance on behalf of the University which he did on 4-7-1973. The vexed question posed for our decision is, as to whether the appeal could be deemed to have been filed on behalf of the University, and if not, has the entire appeal become infructuous and need be dismissed.

It is indeed contended by Shri Sushil Malhotra Advocate who represents the Respondent Parveen Kumar, that there is likelihood of a conflict of decisions because according to him the University has accepted the decision of the learned single Judge and the decision having become final as against the University cannot be set at naught on behalf of the other two Appellants as it might lead to a conflict in decisions. In order to obviate the situation, the learned Counsel contends that the entire appeal should be held infructuous and should be dismissed.

In order to appreciate the argument of the respective parties, it would seem appropriate to give a resume of the respective contentions raised by them before the learned single Judge and of the decision that has been arrived at which is the subject-matter of the present appeal. Parveen Kumar applied for his admission in the Medical College but was refused admission on the ground that he had passed the Pre-Medical Examination, which is the qualifying examination for admission, in the second attempt, from the Guru Nanak University which is obviously an University other than the Himachal Pradesh University. The rule, however, enjoined that this stigma would not be applicable to a candidate passing from Himachal Pradesh University. In other words, a candidate passing in the second attempt from Himachal Pradesh University is not disqualified from seeking admission as compared to another candidate having passed in second attempt from any University other than Himachal Pradesh University. According to Parveen Kumar, this rule violated Article 14 of the Constitution. As such he filed a writ petition for quashing the order refusing his admission and also for striking down the said rule made by the Government. The learned Chief Justice who heard the writ petition in a single Bench, decided in favour of Parveen Kumar and struck down the said rule and directed the Respondents (present Appellants) to consider the case of Parveen Kumar for admission. Against that decision the present Appellants have filed this letters-patent appeal.

The learned Counsel for the Respondent has contended with some vehemence, that the learned Advocate-General could not be stated to have filed the appeal on behalf of the Himachal Pradesh University. According to the learned Counsel, the affidavit submitted by the learned Advocate-General would be of no avail and indeed did not spell out any prior authority to the learned Counsel to file an appeal also on behalf of the University. It is undisputed that Shri Inder Singh is the standing counsel for the University and that he represented the University before the learned single Judge. That is why the learned Advocate-General has considered the necessity of filing a fresh power of attorney on behalf of the University. In his affidavit, the learned Advocate-General submits that he was asked by Shri Inder Singh to file the appeal on behalf of the University, although he has not cared to give any date when he was actually asked by the learned Counsel for the filing of the appeal. To reinforce his affidavit, the learned Advocate-General filed a letter dated 6-6-1973 written by Shri Inder Singh and the contents of this letter almost clinch the issue against him. In this letter Shri Inder Singh mentioned that the decision struck down was of the Government and not of the University, although the University is affected inasmuch as, candidates passing from the Himachal University would stand on the same footing as are the candidates passing from other universities. Shri Inder Singh further wrote that the Government had made the impugned rule prescribing the condition for admission, and suggested that the Government would perhaps like to file an appeal against the decision. In his ultimate paragraph, Shri Inder Singh requested the Advocate-General "to kindly take appropriate steps if he feels it necessary". Therefore Shri Inder Singh, clearly pointed out to the Advocate-General that the decision was against the Government, that the decision struck down a rule made by the Government, and that the Government should file an appeal for which he advised the Advocatd-General to take appropriate steps. In other words, Shri Inder Singh gave out that the University was not prepared to file the appeal although the Government should do it for the reasons stated. Therefore, the said letter did not convey any authority to the Advocate-General to file the appeal on behalf of the University.

The learned Advocate-General, however, considered that it was enough for him to have filed the appeal on behalf of the University and to have subsequently submitted a power of attorney on its behalf. According to him, it would be a mere irregularity which is curable at any time even beyond the prescribed period of limitation for filing a letters-patent appeal. It is again undisputed that the power of attorney has been filed by the learned Advocate-General after the expiry of the period of 30 days from the date of the decision which is prescribed for the filing of a letters-patent appeal. The learned Advocate-General relies on a string of authorities which are: Dahyabhai Girdhardas Vs. Bobaji Dahyaji Kotwal and Others, Nadella Satyanarayana v. Tamanoori Venkata Subbiah AIR 1957 A P 172 , Jhumarmull Sethia Vs. Champalal Bothra, and Raghunath Devi v. Administrator, Srinagar Municipality, AIR 1962 J & K 83. In all these cases, the authority to file an application or a plaint was already there from before and the only defect pointed out was, formal defect relating to the form of authority submitted or the signatures appended to or some such matter. It was held that the irregularities were curable and even after the expiry of limitation, the application or the plaint could be held to be validly filed in court. In Dahyabhai Girdhardas Vs. Bobaji Dahyaji Kotwal and Others, the plaint was signed by the son of the Plaintiff. He was not properly authorized to sign the plaint and the defect was subsequently removed by amendment. In AIR 1957 AP 172, for the filing of the execution application authority was not given in the prescribed manner and the defect was subsequently cured. In AIR 1958 Raj 128 , the decree-holder had not signed the Vakalatnama of the counsel who filed on his behalf the execution application. The defect was removed subsequently. In Jhumarmull Sethia Vs. Champalal Bothra, the Vakalatnama was signed by an unauthorized person and later on it was made to be signed by the proper person, In Raghunath Devi v. Administrator, Srinagar Municipality, AIR 1962 J & K 83. unsigned Vakalatnama was filed by the Advocate and he was made to sign it later on. As evident, all these cases related to entirely a different situation. In these cases the authority to file the application or the plaint was already there from before. The defect was in the manner of signing the application or the plaint or the Vakalatnama, or in the mode of conferring that authority to the person filing the application or the plaint. In the instant case with which we are confronted, the appeal has been filed by an Advocate who did not represent the University. He was not given any authority to file the appeal and as such the appeal was incompetent so far as the University is concerned. The learned Advocate-General also brought to our notice a case of the Supreme Court of which the report is Sastri Yagnapurushadji and Others Vs. Muldas Bhudardas Vaishya and Another, Their Lordships were considering a case with reference to Order 3, Rule 4, of a Vakalatnama which stood in favour of the Government Pleader, but the memo of appeal and Vakalatnama were presented in the High Court by the Assistant Government Pleader working in the same office. The irregularity was not noticed by the Registrar. It was held that the presentation of the memorandum of appeal was technically irregular, yet no party could suffer for the mistake that was of the court and that the High Court was right in allowing subsequently the Government Pleader to sign the Vakalatnama and the memo of appeal the case prima facie stands on a different footing. The authority to file the memorandum of appeal on behalf of the Government was already there and the dispute was, as to whether the Government Pleader or the Assistant Government Pleader should have presented the memo of appeal. We are, therefore, persuaded to hold in the instant case that the appeal cannot be taken to have been filed on behalf of the Himachal Pradesh University.

The learned Advocate-General then contended on the basis of Order 41, Rule 4 of the CPC that the remaining two Appellants could file the appeal without making the University as party to it. It is not disputed before us that Order 41, Rule 4 does apply to a letters-patent appeal. If it does, as it is, only two of the Respondents, namely, the State and the Principal of the Medical College, could file the appeal against the decision because the decision appealed from proceeded on a ground common to all--the Petitioner and the Respondents. As evident from the facts stated above, the contention of the University as well as of the Government was one and the same. They were upholding the vires of the rule, while Parveen Kumar was challenging its vires on some definite grounds. The rule itself was accepted and adopted by the State Government as the Medical College is a Government institution. It may, however, be stated that as a result to this rule a candidate passing from the Himachal Pradesh University gets an advantage over a candidate passing from any other University. It is not difficult to hold that the ground is common with the State Government, the Principal of the Medical College, and the University, all of whom want to uphold the vires of the rule. Therefore, in our opinion, Rule 4, Order 41 would have its application. The appeal could have been filed by only two of the Respondents (at present Appellants) against Parveen Kumar. The policy of Rule 4 of Order 41 is, firstly to give the Appellate court full power to do justice to all the parties, whether before it or not, provided the whole case is gone into at the instance of any party who represents all the necessary contentions in the case, and secondly to prevent contradictory decisions on the matter in suit. This proposition is further qualified by saying that under Rule 33 of Order 41 although the Appellate court would be able to vary or reverse the decree in favour of any person not made a party to appeal, yet it would not pass a decree against him without making him a party, as the fundamental rule is that a decree can only be passed against a person who is first made a party and heard against the passing of such decree. Therefore, in the absence of the University, the decision of the learned single Judge can be varied and can also be upheld even though the University has not filed the appeal against that decision. If, however, the decision is varied or reversed in a manner so that a relief is given against the University, that would be permissible only, when the University is first made a party. In any event, the appeal cannot be struck down as infructuous simply on the ground that the University has not been made a party to it. The learned Counsel for the Respondent Parveen Kumar referred to the reliefs claimed in the petition. His contention was that one of the reliefs was also claimed against the University inasmuch as it was stated that whatever "rules, instructions or orders are issued by the University, debarring such persons from seeking admission should be declared illegal and void". As we have stated above, the rule is made by the University for the benefit of a Government institution. As such both the Government and the University are interested in upholding the rule. By the application of Order 41, Rule 4 the ground of defence being common to all the Respondents, the appeal could be filed only by two of them who are at present the Appellants. The appeal can be stated to be properly constituted by virtue of Rule 4 of Order 41 and the point in controversy between the parties can effectively be decided although the University is not a party. It may not be correct to say that the University has accepted the finding, because the letter of Shri Inder Singh at any rate indicates that the University was very much in favour of finding an appeal against the decision.

The learned Counsel maintained that there would be a conflict of decisions. The presumption of the learned Counsel is that the decision has become final against the University. By the application of Rules 4 and 33 of Order 41, the decision can be reversed or varied and the appeal itself is properly constituted, although the University is not a party. That being the position, there can be no occasion for any conflict of decrees or decisions. It is not a case of abatement of the appeal as a result of the death of one of the Appellants. For such abatement, Order 22 would have application and not Order 41, Rule 4. In this connection, the following observation of a Full Bench of Patna High Court in Mt. Parwati Kuer and Others Vs. Manna Lal Khetan and Others, would be found instructive:

If Order 41, Rule 4 and Order 41, Rule 33 are read together, there can be no doubt that one of the Defendants can file an appeal without impleading the other Defendants as Respondents, and if the appeal proceeds on a ground common to all the Defendants, the Appellate Court may exercise the power of varying the decree in favour of the non-appealing Defendants, though they have not been parties to the appeal. The effect of these two rules is that the Appellate Court is authorised to pass a decree in favour of a party who has not been heard, but the Appellate Court is not authorised to pass a decree against a person who is not a party to the appeal. Thus the Appellate Court has power, under the provisions of Order 41, Rule 4 read with Order 41, Rule 33 to vary or reverse the mortgage decree granted by the lower Court in favour of a Defendant who is not impleaded either as a party Appellant or as a party Respondent, and whose name is ordered to be expunged from memorandum of appeal on account of a technical defect. There is no question of abatement in such a case." Applying this dedicate to the present case, the appeal itself can be held to be competent, although filed by two of the Respondents. Reference need also be made to Narsingh Das v. Bhairon Das AIR 1961 Raj 81. The learned Judge referred to the general rule that on an appeal by one of several Plaintiffs or Defendants, the Appellate Court can reverse or vary the decree of the trial Court only in favour of the party appealing. Order 41, Rule 4 provides an exception to this general rule and gives the Court power to pass an appropriate decree in favour of even the non-appealing Plaintiffs or Defendants where the requirement of that rule is satisfied. This requirement is that the decree appealed from should proceed on any ground common to all the Plaintiffs or to all the Defendants. In such a case, an appeal by one is virtually treated as an appeal by all, though they may not be parties to the appeal. However, it would always be better to implead the other Defendant or Defendants in order to make the array of parties complete and to avoid all further complications which may possibly arise.

We are on firmer ground, therefore, to hold that the appeal cannot be held to be in competent. It is filed by two of the Respondents, namely, the State and the Principal of the Medical College. The University is not a party to the appeal. In our opinion, in order to avoid further complications, the Himachal Pradesh University be also made a party and we direct that the University be made one of the Respondents. The Appellants shall, of course, seek the necessary amendment.