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Fatta and ors. Vs. Mt. Gulabi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 36 of 1952
Judge
Reported inAIR1954HP62
ActsHigh Court Rules; ;High Court Orders; ;Himachal Pradesh (Courts) Order; ;Code of Civil Procedure (CPC) , 1908 - Section 115
AppellantFatta and ors.
RespondentMt. Gulabi
Appellant Advocate R.C. Sawhney, Adv.
Respondent Advocate Kirti Ram, Adv.
Cases ReferredRamdatt v. Paras Ram
Excerpt:
- .....held that : 'revision on behalf of p filed within time, through advocate--advocate having no power on behalf of p but on behalf of r--application to treat revision to be on behalf of r and not p, filed on date, beyond one year from decision of lower court--revision held filed on date of application to treat it as one on behalf of r and held barred.' judged by this criterion, the revision petition can be deemed to have been -filed only on 16-5-1952 by which time limitation had expired. i may point out that under proviso (i) to paragraph 35 (b) of himachal pradesh (courts) order, the revision petition cannot be entertained after the expiry of 90 days from the date of the order sought to be revised, unless the applicant satisfies this court that he had sufficient cause for not making.....
Judgment:
ORDER

Ramabhadran, J.C.

1. This is a revision petition against the judgment and decree dated 29-12-1951 of Mr. Tej Singh Vaidya, formerly District Judge of Mandi, in Civil Appeal No. 229 of 1951, whereby he affirmed the judgment and decree of the Subordinate Judge of Mandi in suit 233 of 1951.

2. Learned counsel for the respondent raised two preliminary objections to the hearing of this revision petition, (a) It is contended that the revision petition is beyond time. The revision petition was presented before the District Judge, Mandi, on 31-3-1952 by Sri Rattan Lal Advocate, who, it is alleged, had no power. Accordingly, the revision petition was returned and was eventually received back on 16-5-1952. It is contended that, by this time, the limitation period had expired. (b) It was further urged that the plea of 'res judicata' could not be raised in revision.

3. As regards (a), learned counsel for the respondent argued that Sri Rattan Lal was not enrolled as an Advocate of this Court on 31-3-1952,when the revision petition was filed before the District Judge. He further pointed out that Sri Rattan Lal had no power to present the petition on behalf of Santu. There was an office objection dated 5-5-1952 pointing out that Sri Rattan Lal had not signed the grounds of revision, nor was his power attached to the petition. The certificate at the foot of the grounds of revision was, however, signed by Sri Hissari Lal Pleader and Sri Rattan Lal Advocate. The petition was, accordingly, returned to Sri Rattan Lal, who returned it on 16-5-1952 after doing the needful. The expression 'the needful' included the filing of a power executed by Santu on 11-5-1952 and accepted by Sri Rattan Lal on 14-5-1952.

Mr. Kirti Ram pointed out that by this time, 139 days had elapsed after the date of the District Judge's judgment. After deducting the period spent in obtaining a copy, the revision petition would be 46 days beyond limitation (vide proviso (i), to paragraph 35 of Himachal Pradesh (Courts) Order).

4. Learned counsel for the petitioner argued that although the power in favour of Sri Rattan Lal is dated 14-5-1952, the stamp affixed thereupon bears the date '26-3-1952'. He further pointed out that the stamp on the revision petition also bears the same date. Counsel for the petitioner relied upon--'Lokhu v. Bhola Ram', AIR 1952 HP 62 (A), wherein my learned predecessor held :

'Though the signing of the memorandum of appeal by the appellant or his pleader is mandatory under Order 41, Rule 1, Civil P. C., the rejection of a memorandum of appeal not so drawn up under Rule 3 of the said Order is only discretionary. The word used in Rule 3 is 'may' and not 'shall' and rejection of the memorandum of appeal is only one of the orders that may be passed by the Court. Where, therefore, there is nothing to show that the defect in the drawing up of the memorandum of appeal was deliberate, the proper order to pass under Rule 3 is not its rejection but, if possible, its amendment then and there.'

Learned counsel for the respondent, on the other hand, cited, 'inter alia',--'Nandamani Ananga Bhima v. Modonomohono Deo', AIR 1937 Mad 239 (B), wherein a Division Bench of that High Court held as follows:

'If a pleader purports to do something which he has no power or capacity to do, what he purports to do can have no legal effect.

Where therefore an execution application is presented by a pleader without any documentary authority in his favour from the decree-holder, it is not a question of a defect in the pleader's authority; nor is it a question of an irregularity, nor even of an illegality, in anything that he does but it is simply a question of want of power or capacity on his part to act. The pleader having no capacity or power to act, the application has no legal effect as not having been made in accordance with law'.

He also referred me to--'Mohammad Qamar v. Mohammad Salamat All Khan', AIR 1930 All 112 (C), where a Division Bench of that High Court observed that:

'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.'

He also cited--'Ramdatt v. Paras Ram', AIR 1954 Him-P 29 (D), where, following--'Beg Ramv. Charan Das', AIR 1951 Him-P 16 (E), my learned predecessor held that :

'Revision on behalf of P filed within time, through advocate--Advocate having no power on behalf of P but on behalf of R--Application to treat revision to be on behalf of R and not P, filed on date, beyond one year from decision of lower Court--Revision held filed on date of application to treat it as one on behalf of R and held barred.'

Judged by this criterion, the revision petition can be deemed to have been -filed only on 16-5-1952 by which time limitation had expired. I may point out that under proviso (i) to paragraph 35 (b) of Himachal Pradesh (Courts) Order, the revision petition cannot be entertained after the expiry of 90 days from the date of the order sought to be revised, unless the applicant satisfies this Court that he had sufficient cause for not making the application within that period. In the present case, no such cause has been made out. On the other hand, the revision petition was filed within the period of limitation but it was not properly presented. If Santu had presented it personally to the District Judge, the question of limitation would not have arisen at all. I am, therefore, obliged to hold that the present petition is time-barred.

5. In view of my finding on the point of limitation, it is not necessary to discuss other points. The revision petition is, accordingly, rejected with costs assessed at Rs. 35/-.


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