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Loknath Misir and ors. Vs. Sheo Saran Misir - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1927All816
AppellantLoknath Misir and ors.
RespondentSheo Saran Misir
Excerpt:
- .....of the vakil who presented the appeal not having been written in the body of the vakalatnama, the appeal presented by him was not properly presented is correct, though i am not unaware of a later bench decision of this court reported as shambhu nath v. badri das a.i.r. 1921 all. 210 in which it has been observed by the learned judges thatif the vakalatnama had been accepted by the pleader, (as was the case in the present suit) we think it would be too technical to hold that the vakalatnama was not a valid authority to the pleader to appear because his name did not appear in the body of it.3. it may be, as pointed out by the learned vakil for the respondent, that in the case of mohammad ali khan v. jasram [1914] 36 all. 46 referred to above the vakalatnama was signed by the vakil.....
Judgment:

Iqbal Ahmad, J.

1. This is a defendants' appeal and arises under the following circumstances: An appeal was presented in the lower appellate Court by one Babu Sarat Chandra Roy, vakil, On behalf of the defendants-appellants. The memorandum of appeal was accompanied by a vakalatnama which bore the signature of the above mentioned vakil in token of the fact that he had consented to act as a vakil on behalf of the appellants; but the name of the vakil did not appear in the body of the vakalatnama. When the appeal was put up for hearing before the lower appellate Court, on the 30th July 1924, an objection was raised on behalf, of the respondent that the appeal was not presented by a person duly authorized to present the same on behalf of the appellants and as such ought to be rejected. This contention was given effect to by the lower appellate Court and the appeal was dismissed.

2. In view of a Division Bench ruling of this Court reported as Mohammad Ali Khan v. Jasram [1914] 36 All. 46, I must hold that the view taken by the lower appellate Court that the name of the vakil who presented the appeal not having been written in the body of the vakalatnama, the appeal presented by him was not properly presented is correct, though I am not unaware of a later Bench decision of this Court reported as Shambhu Nath v. Badri Das A.I.R. 1921 All. 210 in which it has been observed by the learned Judges that

if the vakalatnama had been accepted by the pleader, (as was the case in the present suit) we think it would be too technical to hold that the vakalatnama was not a valid authority to the pleader to appear because his name did not appear in the body of it.

3. It may be, as pointed out by the learned vakil for the respondent, that in the case of Mohammad Ali Khan v. Jasram [1914] 36 All. 46 referred to above the vakalatnama was signed by the vakil concerned and this fact was not brought to the notice of the learned Judges who decided Shambhu Nath's case A.I.R. 1921 All. 210. It may also be pointed out that the view taken in the case of Maharashtraya Jnan Kosh Mandal, Ltd. v. Bijjulal A.I.R. 1923 Nag. 182 is at variance with the view taken by this Court in Mohammad Ali Khan's case [1914] 36 All. 46. However, I am bound by the Bench decision of this Court. But being impressed by the fact that in Shambhu Nath's case A.I.R. 1921 All. 210 it has been pointed out that the view taken in Mohammad Ali Khan's case [1914] 36 All. 46 is too technical a view, I am of opinion that the lower appellate Court should not have, without giving the appellants an opportunity to file an application under Section 5, Limitation Act, dismissed the appeal. It may be that on a consideration of such an application, if filed by the defendants, the Court may come to the conclusion that there are no valid grounds for extending the time or the Court may come to the contrary conclusion but this is a matter which will have to be considered by the lower appellate Court.

4. For the reasons given above I allow this appeal, set aside the decree of the lower appellate Court and remand the case to that Court with directions to restore the appeal to its original number and to proceed to decide the same after giving the defendants-appellants an opportunity to file an application for extension of time under Section 5, Limitation Act. I make no order as to the costs of this appeal.


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