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1960 DIGILAW 130 (KER)

Raghavan v. S T A T Kerala State

1960-02-29

S.VELU PILLAI

body1960
JUDGMENT S. Velu Pillai, J. 1. There were six applicants before the Regional Transport Authority, Kohikode, which may be referred to as the Authority, for a stage carriage permit for the route Badagara-Kuttiadi, via Nadapuram, of whom the second applicant, who is the petitioner in O P. No. 1435 of 1959, was the successful applicant. Of the others, applicants -- Nos. 3, 4 and 6 preferred appeals to the State Transport Appellate Tribunal, which may be referred to as the Tribunal, and which, by the order now sought to be quashed, has granted the permit in favour of the sixth applicant. Applicants -- Nos. 3 and 4 -- have preferred respectively O. P. No. 61 of 1960 and O. P. No. 69 of 1960, to quash the same order. The three petitions have been heard together by me, and this is the common judgment on them. 2. The grounds on which the order of the Tribunal was sought to be quashed, are three-fold, first, that the appeal preferred before it by the sixth applicant was really no appeal and was in any view, barred by limitation and so the Tribunal had acted without jurisdiction in ordering the grant of a permit to him, secondly, that the grounds urged by the Authority for rejecting the claim of the sixth applicant were wrongly overruled by the Tribunal; and thirdly, that the Tribunal committed an error apparent on the face of the record by granting the permit to the sixth applicant, which would result in a monopoly to him. These grounds may be considered seriatim. 3. The sixth applicant is the sole proprietor of the business called "The Punchiri Motor Service, Badagara." Appeal No. 439 of 1957 was preferred, with the description of the appellant as The Punchiri Motor Service, Badagara, and the appeal memorandum was signed by N. K. Gopala Kurup as "manager for and on behalf of The Punchiri Motor Service" and by the Advocate, the vakalath in whose name was executed by N. K. Gopala Kurup. The objection was taken, that the appeal could not be preferred in the business name "The Punchiri Motor Service, Badagara" under Order XXXIII, Rule 10, C. P. C. Upon this, the sixth applicant A. C. Kunhiraman Nambiar by name, made two applications, C. M. Ps. Nos. The objection was taken, that the appeal could not be preferred in the business name "The Punchiri Motor Service, Badagara" under Order XXXIII, Rule 10, C. P. C. Upon this, the sixth applicant A. C. Kunhiraman Nambiar by name, made two applications, C. M. Ps. Nos. 81 and 82 of 1958 on August, 6, 1958, the former being for the substitution of his name for that of the appellant or in the alternative, for his impleadment as additional appellant, and the latter being for the correction of the cause title of the appeal, by inserting his name and description as the proprietor of The Punchiri Motor Service, Badagara, in the place of the original description. After hearing the parties, the Tribunal allowed both applications, by permitting the insertion of the name and description of the sixth applicant as of the appellant. A further objection based on S.22(1) of the Limitation Act, that the appeal would then be barred by limitation, was overruled by the Tribunal, on the ground, that it was only a case of misdescription of the appellant due to a bona fide mistake. The appeals pending before the Tribunal were then heard, and disagreeing with the reasoning of the Authority and setting aside its order, it remanded the matter for fresh decision. The petitioner in O. P. No. 1435 of 1959 then preferred O. P. No. 742 of 1958, in disposing of which, this court observed as follows: "Learned counsel appearing on both sides agree that the appellate authority may itself dispose of the appeal on merits. But the decision given on the maintainability of Appeal 439/57 will at present stand and will be incorporated in the new order to be canvassed in further proceedings that may be taken against the final order to be passed." After this, the Tribunal, which had commenced to hold its sittings at Ernakulam, heard the appeals on the merits after renumbering them, and passed the order now impugned in these petitions. The objection taken before me, that the Tribunal acted without jurisdiction in deciding the appeal of the sixth applicant, has to be considered in the background of the facts set forth above. 4. The objection taken before me, that the Tribunal acted without jurisdiction in deciding the appeal of the sixth applicant, has to be considered in the background of the facts set forth above. 4. The maintainability of that appeal was objected to on the ground that it was barred by limitation under S.22(1) of the Limitation Act, as on the date on which the sixth applicant's name and description were inserted in the appeal memorandum; on the finding of fact entered by the Tribunal, that it was a case of misdescription of the appellant as the result of a bona fide mistake, the objection to the maintainability could not be sustained, and is overruled. That such errors must be viewed as errors of description was held by Das Gupta C. J., as he then was, in Manilal & Sons v. Purushotham Umadbhai and Co., AIR 1960 Calcutta 15. Another objection was taken in this court for the first time, that after the amendment of the cause title of the appeal, the sixth applicant, the appellant, did not sign the appeal memorandum, which still continues to bear only the signatures of Gopala Kurup and of the Advocate engaged by him and this was said to constitute a fatal defect in the appeal, as to render it no appeal whatever in the eye of law. The learned counsel for the petitioner in O. P. No, 1435 of 1959 relied on decided cases of defective presentation of appeals, such as, All India Barai Mahasabha v. Jangi Lal Chaurasia, AIR 1941 Oudh 169; Mohammad Oamar Shah Khan v. Mohammad Salamat Ali Khan, AIR 1930 Allahabad 112, Tulsi Ram v. Gobind Ram, AIR 1939 Lahore 41, in which the view prevailed, that though such defects were curable, so long as they were not cured, there were no appeals in the contemplation of law. On the contrary, the learned counsel for the sixth applicant has referred me to other cases, such as Wali Mohammed Khan v. Ishak Ali Khan, AIR 1931 Allahabad 507 (FB) Mohini Mohun Das v. Bungsi Buddan Saha Das, 17 Calcutta 580 PC., Subbiah Pillai v. Sankarapandian Pillai, AIR 1948 Madras 369 and Radakishen v. Wall Mohammed, AIR 1956 Hyderabad 133, which have definitely held, that the absence of signature and verification in plaints are only defects which can be cured at any time during the litigation, and are not of a jurisdictional nature. It was also held in the Madras Case cited, that the objection raised on the ground of absence of signatures of two of the plaintiffs, was "one of high technicality and devoid of all merits and the curing of any defect, which there may be, comes within the scope of S.99 of the Civil Procedure Code", the counter part of which is S.134(2) of the Motor Vehicles Act, 1939, which reads as follows: "No order made by a competent authority under this Act shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the proceedings, unless it appears to the prescribed appellate authority or revisional authority, as the case may be, that such error, omission or irregularity has, in fact occasioned a failure of justice". It was faintly suggested, that a distinction must be made between a plaint and an appeal memorandum in this respect, but Order VI, Rule 14 too provides, that every pleading shall be signed by the party and its pleader, just as Order XLI, Rule 1 provides that every appeal memorandum shall be signed by the appellant or his pleader. Defective presentation in the circumstances of this case, depends only on the defective signature in the appeal memorandum. In view of such conflict of judicial opinions, it cannot be contended, that the defect as to jurisdiction, if any, was so patent; but the ground on which the defect is contended to exist, was pointed out even in the first order passed by the Tribunal itself, which stated specifically, by whom the appeal memorandum was signed. It cannot therefore be denied that the petitioners had notice of the defect when the matter came to the Tribunal a second time, but they refrained from making a point of it. Had they done so, it is only reasonable to think, that the defect would at once have been cured, by permitting the sixth applicant to affix his signature to the appeal memorandum. Had they done so, it is only reasonable to think, that the defect would at once have been cured, by permitting the sixth applicant to affix his signature to the appeal memorandum. The present appears to me to be a case in which, the petitioners submitted to the jurisdiction of the Tribunal to entertain and decide the appeal, as in the words of Chagla C. J. in Gandhinagar Motor Transport Society, v. State of Bombay, AIR 1954 Bombay 202 which I had followed in Uthram Nal Umaprabha Thampuratty v. State of Kerala, 1960 KLJ 38 : "The petitioners have sat on the fence, (they) have taken a chance of the Tribunal deciding in (their) favour and it is not open to (them) now to come to us and ask for a writ" There is no explanation by the petitioners, as to why they did not raise this objection before the Tribunal, even though the appeal memorandum was open for their inspection, let alone the statement of the Tribunal in the first order referred to above. I therefore hold, that having submitted to the jurisdiction of the Tribunal and taken the chance of obtaining a favourable order in their favour, it is not now open to the petitioners to object to the jurisdiction of the Tribunal to pass the order in favour of the successful applicant. 5. There is no substance in the second and the third grounds urged before me for quashing the order of the Tribunal. As contended by the learned counsel for the petitioners, the Tribunal did not allow the successful applicant to adduce any fresh evidence before it, but only took into consideration the explanation offered by him in this appeal memorandum concerning a case of overloading against him upon which the Authority relied. The Tribunal was entitled to make its own inference from the circumstance that petitions of complaint were received against the sixth applicant at or about the time at which the issue of the permit was to be decided. The Tribunal also held, that there was no case of monopoly because as admitted by the fourth applicant in his petition before me, he was also a competing bus operator with the sixth applicant, though with a considerably smaller number of buses. The Tribunal also held, that there was no case of monopoly because as admitted by the fourth applicant in his petition before me, he was also a competing bus operator with the sixth applicant, though with a considerably smaller number of buses. Even if there was monopoly, it was open to the Tribunal to overrule the objection -- Sri Rama Vilas Service (Private) Ltd. v. Raman and Raman (Private) Ltd., AIR 1959 Madras 492. These are hardly grounds on which the petitioners can expect this court to interfere in the exercise of its jurisdiction under Article 226, with such decisions of the Transport Authorities. 6. I dismiss these petitions with costs of the sixth applicant, but his Advocate's fee of Rs. 100/- shall be paid to him only by the petitioner in O. P. No. 1435 of 1959.