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Govind Ranganath Kale Vs. Maharashtra Revenue Tribunal, Pune and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSpl. Civil Appln. No. 1676 of 1976
Judge
Reported inAIR1981Bom462; 1981MhLJ246
ActsMaharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 33, 33(3), 44B and 44R; Code of Civil Procedure (CPC), 1908 - Order 3, Rule 1 - Order 9, Rule 1
AppellantGovind Ranganath Kale
RespondentMaharashtra Revenue Tribunal, Pune and anr.
Appellant AdvocateS.M. Mhamane and;Dilip Karnik, Advs.
Respondent AdvocateD.S. Chopda, Asst. Govt. Pleader
Excerpt:
.....apply and act' are clearly intended tocover different actions or parts played by anauthorised agent on behalf of another. 6. as to whether the filing of an appeal-petition like the filing of a plaint is an act or appearance, the full bench has held that the presentation of a plaint or presentation of an appeal was an act. if these are distinct acts which can be performed on behalf of a party by his agent, then section 44-b clearly precludes only one kind of distinct activity viz. therefore, in the circumstances, if a person is not authorised to present a particular document like an appeal, presentation by such person is mere irregularity and does not oust the jurisdiction of the court, or make the institution of the proceedings, a nullity. at best, the presentation amounts to an..........and pleading and doing all that is necessary for the purposes of conduct of the proceedings. a person appearing may also, if the authority so permits, be entitled to act on behalf of such a person. but the three kinds of functions viz. appearance, application and acting on behalf of another, refer to different acts and capacities.8. under section 44-b, an agent or pleader is precluded from appearing. it does not say anything about acting on behalf of another person. if acting, therefore, on behalf of another person is a distinct act from appearing, the use of three different words suggests and refers to different acts by a recognised agent or pleader. then it is reasonable to think that these are distinct parts of activities which can be performed on behalf of a party by his.....
Judgment:
ORDER

1. The petitioner had filed an appeal before the Maharashtra Revenue Tribunal against the order of the Surplus Land Determination Tribunal, Jamkhed, declaring him to be a surplus holder of 54 acres of land. His appeal was thrown out by the Tribunal on the short ground that it was incompetent by reason of being signed and filed by an unauthorised person in contravention of Section 44-B of the Ceiling Act. The petitioner had not filed his appeal in person, but it was filed on his behalf by his agent, the Power of Attorney holder Vitial Kale. The petitioner is one Govind. The Tribunal held that though the provisions of Civil P. C. were applicable by virtue of Section 33, Sub-section (3) and confers those powers of a Civil Court in the Tribunal while deciding the appeals, Section 44-B does not permit the filing of an appeal by a power of Attorney except in the case of a disabled person. It is this decision which is challenged before me.

2. Now Section 44-B is in these terms:

'Notwithstanding anything contained inthis Act or any law for the time being inforce, no pleader shall be entitled to appearon behalf of any party in any proceedingsunder this Act before the Authorised Officer, the Tribunal, the Collector, the Commissioner, the State Government or the Maharashtra Revenue Tribunal: Provided that, where a party is a minor of lunatic, his guardian may appear, and in the case of any other person under disability, hit authorised agent may appear'.

Section 44-B now numbered as 44-R (sic) provides that 'No pleader shall be entitled to appear' on behalf of any party. The proviso to that section makes an exception in favour of a minor or lunatic in whose case his guardian may appear and only in the case of any other person under disability, his authorised agent may appear. Now the short question is whether filing of an appeal by an authorised agent, is appearing on behalf of a person?

3. Apart from the circumstance that the Tribunal in this case has taken an extremely technical view which also is not warranted, the learned Assistant Government Pleader, appearing for the respondent, fairly conceded that the order of the Tribunal should be set aside and the matter should be sent back to the Tribunal. It will be seen that the relevant provisions applicable are to be found under Order 3 of the Civil P. C. and in Section 33 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act providing for appeals. Section 3 does not say as to who is entitled to file an appeal. It merely says that an appeal against an order or award of the Collector shall lie to the Maharashtra Revenue Tribunal. It is, however, implicit and can be assumed that a person aggrieved by the order would be entitled to file an appeal against the order or award of the Collector to the Maharashtra Revenue Tribunal. Section 44-B (now 44-R) (sic) does not deal with the filing of appeals but deals with appearances of pleaders and authorised agents on behalf of parties. The question is whether the filing of this appeal by an authorised agent as in this case amounts to 'appearing' on behalf of such a person.

4. Now Order 3, Rule 1 of the Civil P. C.which is applicable in the matter of disposalof appeals and the procedure relating thereto, speaks of three things, which can be doneby an authorised agent. They are, 'appearance', 'application' and 'act'. In otherwords, an authorised agent or pleader caneither 'appear' for a party or he may also'apply' for a party and is entitled 'to act'in any Court for a party, provided he is soauthorised. The three words viz. 'appear,apply and act' have been differently usedand they necessarily connote different ideas.An application on behalf of a person wouldamount to acting on his behalf. The word'act' means, according to the Dictionarymeaning thereof, 'to do something'. Whatis permitted by Order 3, Rule 1 of the Civil P. C.to a recognised agent or to a Pleader is todo something for a party, which the partycould have done for himself. In other words,when a party can present any Appeal orPetition, his recognised agent could also doso. When he does present such an Appealor Petition, he acts on behalf of the party.When he applies to a Court for certain purposes, then also he may be said to be actingon behalf of the party. But the use of thethree different terminologies and words 'appear, apply and act' are clearly intended tocover different actions or parts played by anauthorised agent on behalf of another. Thequestion is whether appearance on behalf ofanother is also included in acting. To putit the other way, whether a person, appearing on behalf of (sic) would also bedeemed to be acting (sic) his behalf.

5. The question was dealt with exhaustively and fully by a Full Bench decision in the case of Satyanarayan v. Venkata AIR 1957 Andh Pra 172. It was pointed out in that case that the word 'apply' which is capable of meaning of making a request, may also 'refer to the initiation of a proceeding by means of an application'. In other words, making a request to the Court to do something, and the word 'act' refers to all the necessary steps that must subsequently be taken in the course of the litigation on behalf of a party. It was also pointed out that acting includes applying and a pleader who makes an application on behalf of a litigant, acts for him and cannot do so unless he is duly authorised in that behalf. In other words, the word 'act' is capable of including a function or action of making a request and, therefore, acting on behalf of a party. Acting comprises of doing something also.

6. As to whether the filing of an Appeal-Petition like the filing of a plaint is an act or appearance, the Full Bench has held that the presentation of a plaint or presentation of an appeal was an act. It was also so held in a Lahore case reported in AIR 1944 Lah 131.

7. The same cannot, however, be said in regard to the word 'appear'. Where a person appears for another, though he may be authorised to act on his behalf, whether the, authority to act includes authority to appear would depend upon the terms of the authority. Appearing on behalf of another person has been commonly understood to mean to plead and to represent that another person. For the purpose of Order 9, Rule 1, such a person has to be one able to answer all material questions, which may arise in such a suit. A person is said to be appearing for another, where such a person is able to conduct and prosecute the matter or proceed on behalf of that other person. Appearing, therefore, would mean prosecuting of a proceeding and pleading and doing all that is necessary for the purposes of conduct of the proceedings. A person appearing may also, if the authority so permits, be entitled to act on behalf of such a person. But the three kinds of functions viz. appearance, application and acting on behalf of another, refer to different acts and capacities.

8. Under Section 44-B, an Agent or Pleader is precluded from appearing. It does not say anything about acting on behalf of another person. If acting, therefore, on behalf of another person is a distinct act from appearing, the use of three different words suggests and refers to different acts by a recognised agent or pleader. Then it is reasonable to think that these are distinct parts of activities which can be performed on behalf of a party by his authorised agent or pleader. If these are distinct acts which can be performed on behalf of a party by his agent, then Section 44-B clearly precludes only one kind of distinct activity viz. of appearance which would mean, in the circumstances, pleading or prosecuting of conducting on behalf of a party.

9. It may also be pointed out that where a plaint or an appeal is not properly presented, say for instance, where it is not signed by the person who purports to file the appeal, presentation of the petition does not become a nullity as it seems to have been thought or expressed by the learned Tribunal. It has all along and consistently been held that this amounts merely to an irregularity. Therefore, in the circumstances, if a person is not authorised to present a particular document like an appeal, presentation by such person is mere irregularity and does not oust the jurisdiction of the Court, or make the institution of the proceedings, a nullity. The Court has a discretion and power to cure such an irregularity and such irregularity should also be permitted to be cured. Under Section 33 (3), the Tribunal has all the powers which a Civil Court possesses. The power to permit a proper party to sign pleadings or appeal is a part of such power and could always be exercised.

10. Instead of, therefore, allowing the petitioner, in this case, to sign the Appeal-memo, the Tribunal thought that there was no appeal filed before it at all and took the view that the filing of that appeal was by an unauthorised person and, therefore, was not the filing of an appeal at all. In the circumstances, the view taken by the Tribunal is not only incorrect but highly technical and unwarranted by law. At best, the presentation amounts to an irregularity which can be cured by allowing the petitioner to sign the Appeal-Petition.

The petition, therefore, succeeds and the order of the Tribunal is set aside and the case is remanded to the Tribunal for the decision in accordance with law. There will be no order as to costs.

Rule absolute.

11. Petition allowed.


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