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Allahabad High Court · body

1968 DIGILAW 316 (ALL)

Birkha v. State

1968-08-22

D.S.MATHUR

body1968
ORDER D.S. Mathur, J. - The appeal was presented before the Settlement Officer (Consolidation) by Sri Mahesh Prasad Bhatnagar Vakil, on behalf of the Petitioner Birkha, with the Vakalatnama accepted by the Vakil; but it was inadvertently not signed by the Petitioner. The appeal was originally filed before the Deputy Director of Consolidation. 2. The delay in the presentation of the appeal was condoned by the Settlement Officer (Consolidation) and the defect in the Vakalatnama was not given any weight. Hence the Settlement Officer (Consolidation) entertained the appeal and after hearing on merits remanded it to the Consolidation Officer for writing a proper judgment. The Respondents Brahma Singh and Shiam Singh, then preferred a revision before the Deputy Director of Consolidation, who took a different view and held that the appeal had not been properly presented. 3. The point for consideration is whether the defect in presentation, as a result of the omission of the Petitioner to sign the Vakalatnama, could be condoned, or it amounted to an illegality, which affected the jurisdiction of the Settlement Officer (Consolidation). 4. In para 12 of the petition the Petitioner also alleged that he was present at the time of the presentation of the appeal. This has not been controverted in the counter affidavit. Consequently, it can be accepted that the Petitioner was present at the time of the presentation of the appeal and it was by over sight that he had not signed the Vakalatnama. 5. The principle laid down in the Full Bench cases of Wali Mohammad Khan v. Ishak Ali Khan and Anr. 1931 ALJ 777 and Kanhaiya Lal v. The Panchayati Akhara 1949 AWR 217 FB can be utilized to take a view in favour of the Petitioner, that is, to regard the defect in the Vakalatnama as a mere irregularity. A similar view was expressed in Basdeo v. John and Ors. 22 ILR All. 55, Shiv Narain Vs. Deputy Director (C), Mathura and Others, AIR 1959 All 487 and Kodi Lal v. Ch. Ahmad Hasan and Ors. 1945 AWR 121 (CC), Mohammad Ali Khan and Ors. v. Jasram and Ors. AIR 1914 All. 536 and other cases relied upon by the learned Advocate for the Respondents can be distinguished as he defect in the Vakalatnama consisted of the Vakil not being entered therein. 6. Ahmad Hasan and Ors. 1945 AWR 121 (CC), Mohammad Ali Khan and Ors. v. Jasram and Ors. AIR 1914 All. 536 and other cases relied upon by the learned Advocate for the Respondents can be distinguished as he defect in the Vakalatnama consisted of the Vakil not being entered therein. 6. In the circumstances, the order of the Deputy Director of Consolidation deserves to be quashed. The Consolidation Officer should give an opportunity to the Petitioner to sign the Vakalatnama and shall then comply with the order of the Settlement Officer (Consolidation). 7. The writ petition is hereby allowed and the impugned order dated 9-9-1963 of the Deputy Director of Consolidation is quashed. Costs easy. Stay order is vacated.