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Mohammad Qamar Shah Khan Vs. Mohammad Salamat Ali Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1930All112; 121Ind.Cas.546
AppellantMohammad Qamar Shah Khan
RespondentMohammad Salamat Ali Khan
Excerpt:
- - this time the vakalatnama was duly executed, the name of the vakil duly mentioned, the acceptance properly endorsed and the memorandum of appeal signed by the vakil. the affidavit stated in the clearest terms that the plaintiff appellant had intended to engage babu uma charan lal as his vakil, that it was due to mere accident or inadvertance that his name had not been mentioned in the vakalatnama and that the vakil had in his turn failed to accept the vakalatnama from pure oversight......district judge of pilibhit, on 2nd march 1926. he dismissed the appeal on the ground that it was time barred. it appears to us that the order, in question, was not technically correct because the appeal could not be time barred, if there was no proper presentation of the appeal. in fact, there was no appeal before the court and no question of limitation arose in the case. where a memorandum of appeal is presented in court by an unauthorized person, it is no appeal at all and the court may reject it for that obvious defect but the court is not justified in treating it as an appeal in due form and rejecting the same as statute barred.4. the plaintiff applied for review of the order, dated 2nd march 1926, on 5th march 1926, and prayed that time be extended under section 5, lim. act, and.....
Judgment:

1. This and the connected appeal No. 1092 of 1926 arise out of a suit for profits instituted by the plaintiff-appellant in the Court of revenue for the years 1329 and 1330 Rs. The facts elicited from the record show a chapter of accidents. The trial Court dismissed the suit for profits on 29th December 1925. An appeal was preferred in the Court of the learned District Judge of Pilibhit, on 28th January 1926, and on that date the appeal was within time. The appeal was admitted and 2nd March 1926 was fixed for hearing. On that date, it appeared that; there had been no proper presentation of the appeal because Babu Uma Charan Lal, vakil, who signed the memorandum of appeal had not been duly appointed. The memorandum of appeal was accompanied by a vakalatnama but it did not contain the name of Babu Uma Charan Lal and there was no endorsement of acceptance by the vakil.

2. It may be incidently noticed that the name of no other vakil was mentioned in the vakalatnama; and it is patently clear that it was the intention of the appellant to engage Babu Uma Charan Lal and to prosecute the appeal through him alone.

3. The case came on for hearing before Mr. Johnstone the learned District Judge of Pilibhit, on 2nd March 1926. He dismissed the appeal on the ground that it was time barred. It appears to us that the order, in question, was not technically correct because the appeal could not be time barred, if there was no proper presentation of the appeal. In fact, there was no appeal before the Court and no question of limitation arose in the case. Where a memorandum of appeal is presented in Court by an unauthorized person, it is no appeal at all and the Court may reject it for that obvious defect but the Court is not justified in treating it as an appeal in due form and rejecting the same as statute barred.

4. The plaintiff applied for review of the order, dated 2nd March 1926, on 5th March 1926, and prayed that time be extended under Section 5, Lim. Act, and also under Section 151, Civil P.C. This application was disallowed by the Court on the very date, that is, on 5th March 1926, on the ground that there was no appeal then pending before the Court and consequently the provisions of Section 5, Lim. Act, could not apply.

5. Undaunted by his reverses, the plaintiff presented, on 7th March 1926, a fresh appeal which was in proper form. He filed an affidavit in which he set out facts to attract the operation of Section 5, Lim. Act. This time the vakalatnama was duly executed, the name of the vakil duly mentioned, the acceptance properly endorsed and the memorandum of appeal signed by the vakil. A prayer was made for extension of time and for condonation of a delay of 23 days since the expiry of the original period of limitation. The affidavit stated in the clearest terms that the plaintiff appellant had intended to engage Babu Uma Charan Lal as his vakil, that it was due to mere accident or inadvertance that his name had not been mentioned in the vakalatnama and that the vakil had in his turn failed to accept the vakalatnama from pure oversight.

6. The case came on for hearing on 6th May 1926, before a District Judge other than Mr. Johnston. The appeal was resisted not on the ground that there was no sufficient cause for extending the period of limitation under Section 5, Lim. Act, but for the reason that it was barred by res judicata. This plea found favour with the learned District Judge, who observed as follows:

A preliminary objection is raised that the appeal has already been dismissed. I cannot hear this appeal. It is barred by res judicata. No question of Section 5, Lim. Act, or any other question can be decided, I dismiss this appeal with costs.

7. This view is obviously erroneous. The appeal originally instituted on 28th January 1926 was no appeal at all. It is true that the learned District Judge, instead of rejecting the memorandum of appeal, as he ought to have done, had improperly used the word 'dismissed' and had further observed that the appeal was time barred. The order dated 2nd March 1926, could not operate as res judicata to the hearing of the appeal which was instituted on 7th March 1926. An order of rejection of a memorandom of appeal which had been presented by a vakil not properly authorized according to law cannot operate as res judicata in a subsequent proceeding in which an appeal has been filed in proper form but beyond limitation. There was not and there could not be any question of res judicata before the Court and the only question which required consideration was whether the prayer for extension of time was to be granted or refused.

8. This matter, however, was not considered by the Court below. We do not consider it necessary to remand the case. The facts are clear and the case may be disposed of forthwith.

9. We are of opinion that sufficient cause has been made out for extending the period of limitation qua the appeal filed on 7th March 1926.

10. Where a party intending to engage a pleader executes a vakalatnama but by a pure mistake omits to mention his name in the said vakalatnama and the pleader in his turn fails to endorse his acceptance and the mistakes are due to pure inadvertance or accident and do not proceed from any dishonest intention, there is sufficient cause for extending the period of limitation of an appeal which, though in proper form has been presented after a short delay. We hold therefore that the appeal filed on 7th March 1926, should be considered to be a proper appeal and not barred by limitation.

11. The result is that we modify the order of the learned District Judge, dated 2nd March 1926, to this extent that the order should be construed as amounting to a rejection of a memorandum of appeal on the ground that it was no appeal at all. We make no order as to costs of this appeal.

12. As to Second Appeal No. 1092 of 1926, we direct that the appeal presented on 7th March 1926, should be numbered and registered as a proper appeal and proceeded with according to law. Costs here and hitherto in this appeal shall abide the result.


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