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Chhita Vs. Mt. Jaffo and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All767
AppellantChhita
RespondentMt. Jaffo and ors.
Excerpt:
- - babu -bishambhar nath however had endorsed the acceptance of the vakalatnama on the back of this document. 7. the defendant has appealed to this court from the order of remand and it has been contended that the subordinate judge was not justified in oversetting the munsif, that the plaint had not been validly presented in the court of the munsif and that the order of remand was bad in law. 536 by the circumstances, that the pleader had endorsed his acceptance in writing on the back of the vakalatnama.sen, j.1. a plaint was presented in the court of the munsif of muttra by one babu bishambhar nath, on behalf of mt. jaffa and others. the plaint was accompanied by a vakalatnama, which was duly signed by the plaintiffs. through haste or by oversight, the executants of the vakalatnama omitted to enter the name of babu bishambhar nath in the body of this instrument. the blank space in the vakalatnama in which the name of the pleader should have been written had not been filled in. babu -bishambhar nath however had endorsed the acceptance of the vakalatnama on the back of this document.2. at a late stage of the case this defect was discovered by a pleader for chitta, defendant. ho objected that there was no valid plaint in court, as that document had been presented by an unauthorized.....
Judgment:

Sen, J.

1. A plaint was presented in the Court of the Munsif of Muttra by one Babu Bishambhar Nath, on behalf of Mt. Jaffa and others. The plaint was accompanied by a vakalatnama, which was duly signed by the plaintiffs. Through haste or by oversight, the executants of the vakalatnama omitted to enter the name of Babu Bishambhar Nath in the body of this instrument. The blank space in the vakalatnama in which the name of the pleader should have been written had not been filled in. Babu -Bishambhar Nath however had endorsed the acceptance of the vakalatnama on the back of this document.

2. At a late stage of the case this defect was discovered by a pleader for Chitta, defendant. Ho objected that there was no valid plaint in Court, as that document had been presented by an unauthorized person.

3. This objection was sustained by the Munsif. He ordered

the case to be struck off the file with the direction that the plaint be returned to the vakil for proper presentation.

4. A formal order was drawn up, which did not exactly agree with the operative part of the judgment and was inaccurate. It run as follows:

It is ordered and decreed that this case be struck off the list of pending cases. The plaint be returned to the pleader for the plaintiffs for presentation to a competent Court.

5. It may be observed that the plaint was to be returned to Babu Bishambhar Nath but he was not the pleader for the plaintiffs. The suit moreover had not been instituted in the wrong Court. The plaint was lodged in the Court of the Munsif of Muttra which was the correct forum.

6. The plaintiffs appealed; and their appeal was heard by the Subordinate Judge of Muttra. He considered that the Munsif had returned the plaint on a view which was narrow and technical; and upon this ground alone ha reversed the order of the Munsif and remanded the case to him for trial on the merits.

7. The defendant has appealed to this Court from the order of remand and it has been contended that the Subordinate Judge was not justified in oversetting the Munsif, that the plaint had not been validly presented in the Court of the Munsif and that the order of remand was bad in law.

8. Order 3, Rule 4, Civil P.C., provides:

(1) No pleader shall act for any person in Court, unless he has been appointed for the purpose by such parson by a document in writing signed by such person.

9. It was obviously the intention of the legislature that the authority of the pleader to act should be contained in an instrument in writing and that the appointment of the pleader could not be made verbally. The word 'shall' in the aforesaid rule indicates that the rule is of an imperative character. Where] the name of the pleader had, through oversight, been omitted from the body of vakalatnama, there was no valid appointment; and the defeat in the instrument could not be cured either: [1909] 6 A.L.J. 110n by production of parol evidence which was inadmissible; or A.I.R. 1914 All. 536 by the circumstances, that the pleader had endorsed his acceptance in writing on the back of the vakalatnama. Where the legislature insists upon the execution of a formal document, there can be no appointment unless the formality has bean duly complied with; and the written authority in favour of a definite individual or individuals by name cannot be dispensed with on the ground that the enacted rule is mere technical rule of procedure.

10. We are of opinion that Babu Bishambhar Nath was not validly appointed and that the plaint lodged by him was unauthorized. We are fortified in our view of law by the principle laid down by this Court in Pokhpal Singh v. Dambar Singh [1909] 6 A.L.J. 110n, Muhammad Ali Khan v. Jasrani A.I.R. 1914 All. 536 and Muhammad Qamar Shah Khan v. Muhammid Salamat Ali Khan : AIR1930All112 .

11. The result is that we allow this appeal, set aside the order of remand and restore the order of the Court of first instance in so far as it directs the return of the plaint to the pleader who presented it. The appellant is entitled to his costs of this Court and of the Courts below.


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