Vinod Chandra Shukla v. Anand Kumar Gupta — 1983 DIGILAW 17 (ALL)

JUDGMENT T.S. Misra, J. - This petition arises in the following circumstances. There is a house No. S/272 in mohalla Saraogi Nawabganj, Barabanki. Its owners were Anand Kumar Gupta and his mother, Smt. Ram Lali. The said house was allotted to Vinod Chandra Shukla by the Rent Control and Eviction Officer vide allotment order dated 12th March, 1974. An appeal u/s 18 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter called the Act) was filed by Anand Kumar Gupta and his mother, Smt. Ram Lali, in the Court of District Judge, Barabanki. During the pendency of the appeal Smt. Ram Lali died on 31st October, 1974. Vinod Chandra Shukla, the allottee, moved an application on 8th November, 1974 praying that the appeal was incompetent because the memorandum of appeal had not been signed by the Appellants. He also moved an application that the Vakalatnama filed by the Counsel did not bear the signatures of the Appellants. Anand Kumar filed an affidavit copy of which is Annexure 1 to the writ petition deposing that he and his mother who were the landlords of the house in question, had jointly preferred the said appeal against the allotment order dated 12th March, 1974 allotting the said house to the Respondent. He also deposed that the copy of the order as received by him had been enclosed with the memorandum of appeal. Further, he deposed that the said appeal was filed in the Court by the authorised Counsel of the Appellants, Sri. R.S. Bajpai Advocate on 27th March, 1974 and the said appeal was admitted by the Court on 28th March, 1974. He deposed that during the pendency of the appeal in the Court his mother, Smt. Ram Lali Appellant No. 2 had expired on 31st October, 1974 and he is the sole heir and legal heir of Smt. Ram Lali. The said appeal was lateron converted into a revision. The learned 1st Additional District Judge, Barabanki, who heard the revision, held that the revision was not incompetent on the aforesaid ground as alleged by the opposite party. The said appeal was lateron converted into a revision. The learned 1st Additional District Judge, Barabanki, who heard the revision, held that the revision was not incompetent on the aforesaid ground as alleged by the opposite party. On merits it was held that the allotment order was not in consonance with law ; consequently the revision was allowed and the order of allotment passed in favour of Vinod Chandra Shukla was set aside and the Rent Control and Eviction Officer was directed to pass proper order according to law after disposing of the release application of the revisionist Vinod Chandra Shukla has filed the instant petition under Article 226 of the Constitution for the quashing of the said order of the learned District Judge, Barabanki. 2. For the Petitioner the only point urged before me was that as the memorandum of appeal, which was later on converted into a revision, had not been signed by the Appellants, Anand Kumar Gupta and his mother Smt. Ram Lali, the same was not competent and the learned First Additional District Judge fell in error in holding otherwise. In order to appreciate the argument, it would be appropriate to refer to Rule 7 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972. Sub-para (1) of Rule 7 being material is extracted here in below: (1) Every appeal or revision under the Act shall be preferred in the form of a memorandum signed by the Appellant or revisionist or applicant, as the case may be, and his Counsel, if any, and presented either in person or through Counsel, to the District Judge or to the Munsarim of his Court. 3. So, by reason of Rule 7 the memorandum of appeal or revision has to be signed by the Appellant or applicant, as the case may be, and his Counsel if there is any, hence it is necessary that the memorandum of appeal or revision should be signed by the Appellant or the applicant. It is, however, not necessary that the Appellant or the revisionist must also engage a Counsel but if he engages a Counsel then the memorandum of appeal should be signed by the Counsel as well. It is, however, not necessary that the Appellant or the revisionist must also engage a Counsel but if he engages a Counsel then the memorandum of appeal should be signed by the Counsel as well. The learned Counsel for Anand Kumar Gupta, however, submitted that the word "and" appearing in Rule 7 should be construed as 'or" and hence the memorandum of appeal may be signed by the Appellant or his Counsel. I am unable to accept this contention. The word "and" cannot be construed or here as disconjunctive. Sub-para (1) of Rule 7 is in two parts. The first part requires that the appeal shall be preferred in the form of a memorandum. It further requires that the memorandum of appeal should be signed by the Appellant or the applicant "and" his Counsel. The second part deals with the presentation of the memorandum of appeal. The presentation of the memorandum of appeal or revision, as the case may be made either by the Appellant or the applicant himself "or" through Counsel. The third part deals with the forum. It says that the memorandum of appeal is to be presented to the District Judge "or" to the Munsarim of his Court. So, in the context in which the word "and" has been used in the first part of Sub-para (1) of Rule 7, it cannot be construed as "or". It requires that the memorandum of appeal should be signed by the Appellant and should also be signed by the Counsel if there is any Counsel engaged by the Appellant for the purpose. The distinction is obvious. Order XLI, Rule 1 of the CPC requires that every appeal shall be preferred in the form of a memorandum signed by the Appellant "or" his pleader whereas Order VI, Rule 14 of the CPC requires that every pleading shall be signed by the party "and" his pleader, if any. Thus in the case of the plaint it is to be signed by both the Plaintiff and his pleader if he has a pleader. Whereas in the case of memorandum of appeal filed under Order 41, Rule 1 CPC it can be signed by either of them. Thus in the case of the plaint it is to be signed by both the Plaintiff and his pleader if he has a pleader. Whereas in the case of memorandum of appeal filed under Order 41, Rule 1 CPC it can be signed by either of them. The language of Order VI, Rule 14 as also of Order XLI, Rule 1 of the CPC is, however, mandatory, yet, it has been the uniform view of ail High Courts that the absence of or defect in the signature of the Plaintiff or the Appellant on the plaint or the memorandum of appeal, as the case may be, is not an illegality but only an irregularity which does not in any case affect the jurisdiction of the Court to entertain the plaint or the memorandum. The question first came up for consideration before the Privy Council in the case of Mohini Mohan Das v. Bungsi Buddan Saha ILR 1890 Cal 580 where of the sevral co-Plaintiffs of a plaint only one of them had signed and verified it, but the Privy Council, nevertheless, held that the suit must be deemed to have been filed by the other Plaintiffs also inspite of the absence of any signature or verification by them, if only it was shown that the suit had been filed with their knowledge and authority. What has to be seen in such cases is whether the real Plaintiff or the real Appellant had intended or caused the plaint or the memorandum to be placed before the Court and if such intention appears clearly from the proved circumstances of the case, then any defect or omission to comply with any of the procedural rules regarding signature or verification is to be treated as a mere procedural defect which can be set right at any time by permitting an amendment of the document, irrespective of the question of limitation. This view of the Privy Council was followed by the Calcutta High Court in Shivnath Singh v. Commissioner of Income Tax West Bengal XXXIII ITR 691 and also by this Court in Wali Mohammad Khan v. Ishaq Ali Khan AIR 1931 All. 507. This view of the Privy Council was followed by the Calcutta High Court in Shivnath Singh v. Commissioner of Income Tax West Bengal XXXIII ITR 691 and also by this Court in Wali Mohammad Khan v. Ishaq Ali Khan AIR 1931 All. 507. A Special Bench of this Court in Wali Mohammad case held that absence of signature or verification or for the matter of that the absence of presentation on the part of some of the Plaintiffs out of several does not affect the jurisdiction of the Court and the suit must be deemed to have been duly instituted on their behalf if it was filed with their knowledge and authority. In Bharat Singh v. Board of Revenue 1969 ALJ 59 D.S. Mathur, J. (as he then was) relying upon the case of Mohini Mohan Das (Supra) held that the plaint bearing the name of two Plaintiffs but presented and signed by only one shall be deemed to have been presented on the initial date of presentation even though the other Plaintiff signs the plaint at a much later date. A division Bench of this Court in the case of Rani Bhagwan Kunwar v. State of Uttar Pradesh 1968 AWR 564 after referring to the various decisions of this Court as also of other High Courts held that defects in pleadings either by an omission of a party to sign personally, as required by Order 6, Rule 14 CPC which is mandatory, or, to verify by a party or other person proved to be acquainted with the facts of the case, which is also mandatory, can be removed when the proper person comes forward before the Court and signs or varifies in accordance with law. It was laid down in R.B. Kunwar's case (supra): The result of the above mentioned....provision relating to the signature and verification of pleadings is made. Examining the provisions of the U.P. Virhat Jot Kar Adhiniyam in R.B. Kunwar's case it was observed: As a result of an examination of the provisions of the Act....its jurisdiction u/s 12 of the Act, dismiss the Petitioners appeal outright for such a defect. Examining the provisions of the U.P. Virhat Jot Kar Adhiniyam in R.B. Kunwar's case it was observed: As a result of an examination of the provisions of the Act....its jurisdiction u/s 12 of the Act, dismiss the Petitioners appeal outright for such a defect. Further, it was observed: As regards a failure to sign and verify a memorandum of appeal under the Act, the irregularity could not be said to be substantial when the party intending to appeal had knowledge of the appeal and had, authorised an agent to file it and failed to sign and verify it due to a misapprehension. 4. Rule 7 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 came up for construction in Vishnu Awatar Vs. State, (1978) AWC 769 . It was observed in that case: Rule 7 lays down a rule of procedure. Its breach would, in my opinion not make the memorandum of appeal void. In any event, it was also the duty of the Court when entertaining the memorandum of appeal to see that it was not defective. It should have drawn the attention of the Appellant to this defect. If that had been done, the Appellant would have signed the memo, at that time itself . 5. So, the consistent view is that a rule requiring the momoradum of appeal or revision to be signed by the Appellant or the applicant, as the case may be, and the Counsel, is a rule of procedure and its breach would not make the memorandum void. Failure to sign a memorandum of appeal or revision is an irregularity which can be cured. As laid down in R.B. Kunwar's case (supra) such an irregularity cannot be said to be substantial when the party intending to appeal had knowledge of the appeal and had authorised an agent to file it and failed to sign and verify it due to mis-apprehension. 6. In the instant case Annexure 1 to the writ petition would disclose that Anand Kumar Gupta had filed an affidavit in the Court of the District Judge, Barabanki, in the appeal which was filed by him and his mother. He, as pointed out herein above, had deposed in clear terms that he and his mother, Smt. Ram Lali, had jointly preferred the said appeal against the allotment order dated 12th March, 1974. He, as pointed out herein above, had deposed in clear terms that he and his mother, Smt. Ram Lali, had jointly preferred the said appeal against the allotment order dated 12th March, 1974. He had also said that he had received copy of the allotment order which was enclosed with the memorandum of appeal. Further he had said in clear terms that the appeal was filed in the Court by an authorised Counsel, Sri. R.S. Bajpal Advocate on 27th March, 1974. So, the Appellants had the knowledge of the filing of the appeal. They had authorised Sri. R.S. Bajpai Advocate to file it. The memorandum of appeal was, however, not signed by them but was signed by Sri. R.S. Bajpai Advocate. The memorandum of appeal was presented before the Court of the District Judge and was admitted by the Court on 28th March, 1974. As regards failure to sign the memorandum of appeal the irregularity cannot in the circumstances be said to be substantial. The defect was condoned by the learned First Additional District Judge who held that the revision was competent. The contention of the Petitioner that the memorandum of appeal which was later on converted into a revision having not been signed was fatal illegality cannot hence be accepted. The Court did not point out the defect when the memorandum of appeal was presented before it. On the contrary, the appeal was dismissed. The learned First Additional District Judge had held that the revision was competent inspite of the fact that it was not signed by the Appellants. Anand Kumar Gupta had said that he had engaged the Counsel, Sri. R.S. Bajpai Advocate for the purposes and he was authorised to file the appeal. In these circumstances there is no justifiable ground to interfere with the impugned order passed by the learned Ist Additional District Judge. 7. In the result, the petition is dismissed. However, in the circumstances of the case 1 make no order as to costs.