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Civil Appeal No.17 of 1986, decided on 8th February, 1988.

(On appeal from the judgment of the High Court dated 2 10 1986, in Civil Revision Petition No.43 of 1986).

O.III, Rr.1 & 4 Interpretation of Rules Provisions of R.I and R.4 of O.III, C.P. C. are directory in nature and inter related Absence of signatures of the plaintiffs on Vakalatnama is not an illegality but an irregularity which is curable at any stage of the proceedings.

Rule 1 of Order III, C.P. C. is to be construed alongwith the provisions of rule 4 as the provisions of both the rules are interrelated. Rule 1 provides that any appearance, application or act in or to any Court, required by law to be made by a party is to be made or done by a party in person or recognized agent or by a pleader, on his behalf. It enjoins that a plaint shall be presented in the Court by a party personally or by an agent or counsel authorised in that behalf. In the present case the objection is to the effect that in absence of signatures of the plaintiffs on Vakalatnama the pleadings of plaintiffs could not be signed by the Advocate nor the same could be presented in the Court. In other words it was emphasised that in absence of due authority in form of signature on Vakalatnama, it shall be deemed that the plaint was neither signed by the plaintiffs and verified nor it was presented in due course of law Therefore, there was no suit of plaintiffs before the Court. The answer to the objection is that the rules of procedure contained under rules 1 and 4 of Order III, are directory in nature and not mandatory. This is so as no public policy is involved nor the provisions are accompanied by a penal clause for its non compliance. The object of rules is to ensure that facts stated in the pleadings are duly owned by the parties presenting the same and that the pleadings are presented by the parties personally or through an authorised person. This check is laid down to avoid fraudulent and fictitious litigation. Omission to sign Vakalatnama was considered as a formal defect rectifiable at any stage of the proceedings. Moreover, the rectification of the defect was given effect back from the date of the institution of the suit. Omission to sign Vakalatnama on the part of the counsel or party is not different in degree. Therefore, irrespective of the fact, that Vakalatnama was not signed by the party or counsel, the formal defect shall have the same effect. In the present case in the application moved at the earliest stage of the proceedings to remove the defect, it was frankly accepted that the omission to sign Vakalatnama was by inadvertence. On the date of hearing when the application was moved by the counsel for removal of defect plaintiff was present in the court. This leads to an inference that the application for removal of defect was made under the instruction and consent of the plaintiff who was also attorney of other plaintiffs. The bona fide of the case of plaintiffs is clearly established from the aforesaid facts. The absence of signatures of the plaintiffs on Vakalatnama is not an illegality but an irregularity". Such an irregularity is curable at any stage of the proceedings.

On signing the Vakalatnama, at subsequent stage, and removal of the defect, the suit shall be deemed to have been instituted an the date of presentation of tire plaint and its registration in the office.

In the present case the trial Court accepted the application of the plaintiffs and allowed them to sign Vakalatnama at subsequent date. The trial Court exercised its discretion judiciously by allowing the plaintiffs to sign Vakalatnama.

Nargis Begum and 5 others v. Muhammad Ibrahim and another 1983 CLC 2923; Messrs Nabi Bakhsh and Sons v. Pakistan through the Secretary, Ministry of Industries and Natural Resources P L D 1969 Kar. 210; Raghunath Devi v. Administrator, Srinagar Municipality AIR 1962 J & K 83; Jhumarmull Sethia v. Champalal Bothra A I R 1960 Cal. 61 and The Hyderabad Import Export Co. v. The United Trading Co. A I R 1958 Andh. Pra. 652 ref.

Azad Jammu and Kashmir Government v. Habib Ullah Lone P LD 1984 S C (A J& K) 13 held not applicable.

O.VI, R.14 Absence of signature of plaintiff on the plaint, a formal defect rectifiable at any stage Court is empowered to call the plaintiff to sign the plaint to do away with the defect.

Ch. Riaz Akhtar for Appellants.

Raja Muhammad Siddique for Respondents

The appeal is directed against the order of the High Court passed on October 2, 1986, whereby the revision petition to reverse the Order of the trial Court, preferred by the appellants, was dismissed.

2. In this appeal we have to examine the effect of omission of plaintiff respondents to sign the Vakalatnama at the time of institution of suit and consequence of allowing its signing at subsequent stage.

3. Noor Dad, Allah Ditta, Lal Din and Fazal Bibi filed a suit for declaration against Ghulam Mohi ud Din and others in the Court of Sub Judge Mirpur on July 6, 1985. The plaint was signed and verified by Raja Muhammad Siddique, Advocate, who presented the same in trial Court. The plaint was received and registered duly on which notice to the opposite party was issued for hearing on August 18, 1985. On the next date of hearing, Noor Dad plaintiff attorney of other plaintiffs was present alongwith his counsel. Abdul Aziz one of the defendants was also present. On that day, the learned counsel moved an application for permission to enable Noor Dad to sign Vakalatnama which, according to him, was not signed inadvertently at the time of institution of the suit. In alternative, it was prayed that the plaint may be returned so that it may duly be presented after rectification of the said formal defect. On November 7, 1985 objections to the application were filed. On considering the omission as an irregularity plaintiff was allowed to sign the Vakalatnama in the Court. The learned Judge in the High Court approved the finding of trial Court and dismissed the revision petition.

4. Mr. Riaz Akhter, the learned counsel for the appellants, contended that Raja Muhammad Siddique, Advocate, was not duly authorised to sign the pleadings of plaintiffs and to present it in the Court as the Vakalatnama purported to be executed in his favour, was not duly signed by the plaintiffs. He cited Azad Jammu and Kashmir Government v Habib Ullah Lone P L D 1984 S.C. (AJ&K) 13. The contention was opposed by Raja Muhammad Siddique, who argued that failure of plaintiffs to sign the Vakalatnama at the time of presentation of the pleadings, was an irregularity curable under law. It was emphasised that such an omission is not fatal resulting in dismissal of the suit.

5. The law relating to the appointment of a counsel to act for a person in the Court of law is postulated under Rule 4 Order III of the Code. The relevant provision is reproduced:

"No pleader shall act for any person in any Court unless he has been appointed for the purpose by such person or by a document in writing signed by such person or by his recognized agent or by some other person duly authorised by or under power of attorney to make such appointment."

The law contemplates that a pleader shall act for a person in the court of law when he is authorised by the said person by a document in writing. It is in view of this form of procedure that it is emphasised on behalf of the appellant that unless the Vakalatnama was signed by the plaintiffs, empowering the Advocate to act on their behalf, including to sign the plaint and its verification, the counsel was not competent to do so. Here it is expedient to describe that rule 1 of Order III is to be construed alongwith the provisions of rule 4 as the provisions of both the rules are inter related. Rule 1 provides that any appearance, application or act in or to any Court, required by law to be made .by a party is to be made or done by a party in person or recognized agent or by a pleader, on his behalf. It enjoins that a plaint shall be presented in the Court by a party personally or by an agent or counsel authorised in that behalf. In the present case the objection is to the effect that in absence of signatures of the plaintiffs on Vakalatnama the pleadings, of plaintiffs could not be signed by the Advocate nor the same could be presented in the Court. In other words it was emphasised that in absence of due authority in form of signature on Vakalatnama, it shall be deemed that the plaint was neither signed by the plaintiffs and verified nor it was presented in due course of law. Therefore, there was no suit of plaintiffs before the Court. The answer to the objection is that the rules of procedure contained under rules 1 and 4 of Order III are directory in nature and not mandatory as suggested by the learned counsel for the appellants this is so as no public policy is involved nor the provisions are accompanied by a penal clause for its non compliance. The object of rules is to ensure that facts stated in the pleadings are duly owned by the parties resenting the same and that the pleadings are presented by the parties personally or through, an authorised person. This check is laid down to avoid fraudulent and fictitious litigation. The interpretation of these provisions received attention of superior Courts frequently. There is no denying fact that the omission to sign Vakalatnama was considered as a formal defect rectifiable at any stage of the proceedings. Moreover, the rectification of the defect was given effect back from the date of the institution of the suit. Here it is relevant to state that omission to sign Vakalatnama on the part of the counsel or party is not different in degree. Therefore, irrespective of the fact that Vakalatnama was not signed by the party or counsel, the formal defect shall have the same effect. In present case in the application moved at the earliest, stage of the proceedings to remove the defect, it was frankly accepted that the omission to sign Vakalatnama was by inadvertence. On the date of hearing when the application was moved by the counsel for removal of defect Noor Dad plaintiff was present in the Court as the same is borne out from the interim Order of the trial Court. This leads to an inference that the application for removal of defect was made under the instruction and consent of Noor Dad plaintiff who was also attorney of other plaintiffs. The bona fide of the case of plaintiffs is clearly established from the aforesaid facts. We are, therefore, of the opinion that the absence of signatures of the plaintiffs on Vakalatnama is not an illegality but an irregularity. Such an irregularity is curable at any stage of the proceedings. The authority cited by the learned counsel for the appellants is not applicable to the proposition under consideration for two reasons; firstly, in that case the petition for leave to appeal, though signed by the counsel, was moved on behalf of a person not party to the proceedings. The Law Secretary who empowered the Additional Advocate General to prefer petition for leave to appeal in the Supreme Court, was neither a party to the proceedings nor under law he was competent to extend authorisation to the counsel. Secondly, in that case the objection prevailed" in the light of the rules of the Supreme Court. Rule 19 of Order IV of the Azad Jammu and Kashmir Supreme Court Rules, 1978, postulates that:

"Every Advocate on record shall before acting on behalf of any person or party file in the Registry a power of attorney in the prescribed form authorising him to act."

In the presence of the aforesaid rule it was deemed fit to uphold the objection. In the present case the proposition is not controlled by rules of Supreme Court and it is only the provisions of rule 4 of Order III which regulates the proposition. The provisions of rule 4 received interpretation of superior judiciary in subcontinent occasionally and the consensus is that these provisions being directory in nature, non compliance of the rules strictly is merely an irregularity and not an. illegality. In "Nargis Begum and 5 others v. Muhammad Ibrahim and another" 1983 C L C 2923, the petition for leave to appeal was signed and presented by the counsel who failed to sign Vakalatnama, executed in his favour by the petitioner. Moreover, the name of the counsel was also missing in the Vakalatnama so as to believe that he was engaged by the party. An objection was raised to the effect that the petition not having been signed, verified and presented by the petitioner or counsel, duly engaged by her, was not maintainable. Omission to describe the name of the counsel in Vakalatnama and absence of signature of the counsel was considered as an irregularity. It was observed as:

--------The close reading of this rule would show that the only requirement under the aforementioned provision is that a pleader shall be appointed by a person. It is not visualised that the pleader must formally accept the appointment. Such an acceptance, however, can be gathered from the acts performed by the pleader. In the present case, as elsewhere said, there is no allegation that the petitioners had not engaged Mr. B.A. Shaikh as their counsel nor it is disputed that the petition for leave to appeal does not bear their signatures. In these circumstances, it is only an irregularity which could be remedied by getting the entry of the name of the counsel in the body of the "Vakalatnama" and also getting his signature."

It was further held that:

" ....The examination of the aforementioned authorities would show that accidental omission of the name of pleader from the body of the Vakalatnama is a mere irregularity and it would be too technical to hold that the "Vakalatnama" becomes invalid on this account. If I was to accept this highly technical view that such omissions (indicated above) are fatal then it would result in making it extremely difficult for the people to overcome the consequences of the accidental omissions which are bound to occur as man is not infallible..."

In presence of aforesaid view the objection was repelled. It is pertinent to state here that failure of a party or counsel to sign Vakalatnama does not change the nature of proposition as in both the cases it is an omission on the part of the party or the counsel. In the present case the omission to sign the Vakalatnama has occurred on the part of the plaintiffs, therefore, the nature of the proposition raised in this case is not different from the proposition raised in the aforesaid authority. Identical. view was expressed in "Messrs Nabi Bakhsh and Sons v. Pakistan, through the Secretary, Ministry of Industries and Natural Resources" (P L D 1969 Kar. 210). In that case an application was signed and presented by a pleader to whom the authority was not given in the manner prescribed under rule 4 Order III. An objection to the legal character of the signing of the application and its presentation was repelled as according to the learned Judge the omission was mere an irregularity curable at subsequent stage of the proceedings. In "Raghunath Devi v. Administrator Srinagar Municipality" (A I R 1962 AJ&K 83.) an application for restoration of the suit was signed and presented by the counsel. The application was not accompanied by Vakalatnama. On objection of opposite party, the applicant executed Vakqlatnama subsequently and the same was placed on the file. The learned Judge turned down the objection and held:

"Rule 4 of Order III is only a directory provision, it is sufficient if it is complied with substantially. Substantial compliance of Order III rule 4, is achieved in a case where the pleader makes an application with the consent of a party and subsequently files a formal Vakalatnama duly executed by that party. In this respect there is no difference between a case where an application is signed by a counsel without a Vakalatnama and a case where a counsel without a Vakalatnama merely presents a petition which is duly signed by the party. For, in both the cases the counsel does "act" and different shades or degrees of "acting" by a counsel do not appear to be a concept recognized by procedural law."

In "Jhumarmull Sethia v. Champalal Bothra" (A I R 1960 Calcutta 61) the Division Bench expressed the view that "a petition to set aside an ex parte decree, accompanying Vakalatnama, initially signed by a person not legally authorised to sign for the defendant, can be validated by the signature of the defendant himself at a later stage of the proceeding and when so signed can relate back to the date of the presentation of the petition. Such a defect merely amounts to a formal defect." In "The Hyderabad Import Export Co., v. The United Trading Co." (A I R 1958 Andhra Pradesh 652), an application for restoration of suit was signed and presented by the counsel. The application was not accompanied by Vakalatnama. Later on fresh Vakalatnama was executed by the applicant and was presented before the Court. An objection was raised on behalf of the opposite party that presentation of Vakalatnama at later stage invalidate the application. Further that the presentation of application shall be deemed with effect from the day of presentation of Vakalatnama. The objection was overruled and it was held:

"Strictly and technically a fresh Vakalatnama should be filed when an application for restoration of suit dismissed for default for appearance is filed. But if a fresh Vakalatnama is later filed before final orders are passed on the petition, the defect in the presentation of the petition is not improper and illegal and the jurisdiction of the Court to deal with the petition is not ousted."

The learned Judges further discussed the relationship between the counsel and the client and the effect of ratification of an omission of counsel by client in the following manner:

"The relation between a pleader and his client is, in the final analysis, no more and no less than that of principal and agent. Hence, the client may ratify the acts of his pleader. And ratification means previous authority. It is no doubt true that mere ratification without compliance with the provision of Order III, rule 4 will not benefit the principal but when he ratifies it by means of a written instrument as required by the said rule, the same effect will follow as if the presentation of the application for restoration of suit had been, made with proper authority."

Other aspect of the case is that in absence of duly made appointment of the counsel who signed the pleadings, it shall be deemed as if the pleading of plaintiffs, was not signed. This was violative of rule 14 Order VI C. P. C. It is underlying that a suit cannot be dismissed for absence of signature of plaintiff on the plaint. H This, again, is considered a formal defect, rectifiable at any stage. In present case, it may be said, as the plaint was not duly signed it suffered from this defect. The answer is that in this situation plaintiffs could have been asked to sign the plaint at subsequent stage. The suit could not be dismissed on this ground. The Court was empowered to call the plaintiffs to sign the plaint to do away with the defect.

On this premises, it is permissible to hold that on signing the Vakalatnama, at subsequent stage, and removal of the defect, the suit shall be deemed to have been instituted on the date of presentation of the plaint and its registration in the office.

In the present case the learned Sub Judge accepted the application of the plaintiffs and allowed them to sign Vakalatnama at subsequent date. The trial Court exercised its discretion judiciously by allowing the plaintiffs to sign Vakalatnama. The learned counsel for the appellant was unable to persuade us to believe that the discretion exercised by the trial Court, was a misuse or abuse of power. Following the dictum of this Court expressed in Nargis Begum"s case and the authorities cited above, the objection is repelled. There is no force in the appeal. It is, therefore, dismissed with costs.

M.B. A./207/S.C.A Appeal dismissed.

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