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2001 DIGILAW 996 (PNJ)

Municipal Committee, Sirhind v. Sukhdev Singh

2001-09-07

M.M.KUMAR

body2001
JUDGMENT M.M. Kumar, J. - This is a second appeal filed by the defendants against the judgment of the learned District Judge, Patiala dated 29.8.1981 who has sustained the preliminary objection with regard to the competence of the Executive Officer or the Municipal Committee to file the appeal on the ground that there was no resolution authorising the Executive Officer to file the appeal. However, from the record and even from the judgment and decree of the learned Addl. District Judge it is clear that the resolution dated 25.7.1980 was produced and the learned Addl. District Judge dismissed the appeal on the ground that the period of limitation had already expired on 18.7.1980 and the appeal was not competent. 2. The substantive question of law which arises for determination in this appeal is whether the Executive Officer would acquire competence to file an appeal before the District Judge in pursuance to a resolution passed by the Municipal committee in his favour subsequent to the date of filing of an appeal or the resolution in all cases in required to be prior in time to the filing of an appeal ? In the alternative another question would arise as to whether An Executive Officer is competent to file an appeal before the District Judge on the basis of a resolution passed by the Municipal Committee which is general in terms or not ? 3. Respondents-plaintiffs (for brevity the plaintiffs) No. 1 to 4 filed a suit for declaration that they were owners in possession of disputed agricultural land measuring 11 kanals 8 marlas fully described in the heading of the plaint and a further declaration that revenue entires in the name of appellant-defendant (for brevity the defendants) regarding the suit land are wrong and ineffective and, therefore, liable to be corrected. The suit filed y the plaintiffs was contested by the Municipal Committee and a written statement was filed by the Executive Officer denying the possession of the plaintiffs over the suit land. It was also averred in para 2 of the written statement that the earlier suit filed by the plaintiff regarding the suit land was dismissed by the Sub-Judge Ist Class, Bassi Pathanan and the present suit was barred by the principles of res judicata. It was also averred in para 2 of the written statement that the earlier suit filed by the plaintiff regarding the suit land was dismissed by the Sub-Judge Ist Class, Bassi Pathanan and the present suit was barred by the principles of res judicata. It was claimed that the suit land vest in the Municipal Committee and the mutation has been sanctioned by the revenue authorities in accordance with law. The suit of the plaintiffs was decreed by the learned Sub-Judge 2nd Class Bassi Pathanan on 5.5.1980 and a declaration was granted in terms of the prayer made. A consequential declaration was also given that the revenue entires made in the record in favour of the defendant-committee are wrong and are thus liable to be corrected. Against the judgment of the learned Sub-Judge, an appeal was preferred before the district Judge, patiala being C.A. No. 150 of 20.8.1980. At the time of arguments of the appeal before the learned Addl. District Judge, the plaintiffs raised an objection that the appeal was not competent as there was no resolution authorising the Executive Officer to file the appeal. The learned Addl. District Judge sustained the objection that the resolution produced before him was dated 25.7.1980 and the period of limitation for filing of the appeal had expired on 18.7.1980 and, therefore, the resolution would not confer authority on the Executive Officer from a retrospective date to file an appeal. The view taken by the learned District Judge is reflected in para 2 of his judgment dated 29.8.1981 which reads as under : "The respondents raised the preliminary objection in terms that the appeal was not competent because the municipal committee had not passed the resolution to prefer an appeal. The learned counsel for the appellant contended that such a resolution had been passed. An opportunity was given to the appellant to produce a copy of the resolution. The same was filed yesterday. The resolution is dated 25.7.80. The period of limitation to file appeal expired on 18.7.80. The aforesaid resolution is, thus, of no avail to the appellant-municipal committee. The appeal is, therefore, dismissed with costs." 4. It is pertinent to mention that in the grounds of appeal, the defendant has made a reference to a resolution No. 6 dated 15.1.1980 and the same also been annexed with the present appeal as Annexure P.1. The aforesaid resolution is, thus, of no avail to the appellant-municipal committee. The appeal is, therefore, dismissed with costs." 4. It is pertinent to mention that in the grounds of appeal, the defendant has made a reference to a resolution No. 6 dated 15.1.1980 and the same also been annexed with the present appeal as Annexure P.1. Resolution No. 6 dated 15.1.1980 reads as under : "Agenda according to which proceedings taken Proceedings passed. 6. Report Rent Clerk that cases which are pending in the Court, their filing, re-filing/appeal filing powers be given to the Executive Officer, and those already filed/defendant/appeals filed, their pursuance/filing powers be given to the Executive Officer. Resolution No. 6 approved Submitted for approval." 5. I have heard Shri V.K. Kataria, Advocate for the defendants and Shri K.D. Aggarwal, Advocate for the plaintiffs. 6. From the facts it is clear that the Executive Officer, Municipal Committee, Sirhind has filed written statement on 19.4.1979 and have also signed the power of attorney before the trial Court. On 15.1.1980, the Municipal Committee, Sirhind passed a resolution, arming the Executive Officer with the power to defend the suits which are pending in the Court or to file or refile appeal or to defend those which are already filed or pending. Thereafter legal opinion for the filing of appeal against the judgment dated 5.5.1980 was obtained on 10.7.1980 and then appeal was filed on 20.8.1980. The resolution dated 15.1.1980 has now been relied before me and I have also perused the original resolution. Moreover, this resolution was relied by the defendants before the learned Addl. District Judge in the appeal of Bawa Uttam Gir Chela and another which was also dismissed. Against the judgment of the learned Addl. District Judge, R.S.A. No. 1732 of 1981 was filed which I have allowed today itself. Therefore, only alternative question posed has to be decided. Shri V.K. Kataria, learned counsel for the defendants, makes two fold submissions. He submits firstly, that the resolution dated 15.1.1980 empowered the Executive Officer to defend the suit or file or refile appeal and the same resolution can be successfully relied upon even for him to rely upon the resolution dated 25.7.1980 as the resolution dated 15.1.1980 adequately empowered the Executive Officer to file the appeal. He submits firstly, that the resolution dated 15.1.1980 empowered the Executive Officer to defend the suit or file or refile appeal and the same resolution can be successfully relied upon even for him to rely upon the resolution dated 25.7.1980 as the resolution dated 15.1.1980 adequately empowered the Executive Officer to file the appeal. According to the learned counsel, there is no requirement of law that a specific resolution to file a separate and particular appeal is required. For this proposition, he relies on The State Bank of Patiala v. Shri Balbir Singh and others, 1971 PLR 504 and also National Insurance Company Ltd. v. Smt. Bant Kaur and others, (1998) 1 PLR 216. The second submission of Shri V.K. Kataria is that when the suit was decided by the trial Court on 5.5.1980, no objection was taken at the time of argument with regard to the resolution dated 15.1.1980 as it is the same resolution which authorised the Executive Officer to file the suit. Therefore, it is not permissible for the lower appellate court to allow this objection to be raised for the first time at the stage of first appeal and the defect if any is cured by resolution dated 15.1.1980. For this proposition, he places firm reliance on the case of Garib Chand v. M.C. Budhladha, ILR 1979(2) Punjab and Haryana 478 and Maharishi Dayanand University, Rohtak v. Dr. Jitender Singh Lauria, 1998(3) RCR (Civil) 112 : AIR 1999 Punjab and Haryana 95. 7. Appearing of the plaintiffs Shri K.D. Aggarwal, Advocate argues that the law required a specific and special resolution for filing of an appeal He submits that resolution authorising to defend suit cannot be interpreted to mean that the power to file appeal also flows from that resolution. For this proposition, he relies on the Division Bench judgments reported as Bawa Bhagwan Dass v. Municipal Committee Rupar, AIR 1943 Lahore 318 Murti Shri Raghunath Ji v. Joginder Singh etc. 1971 Curr. L.J. 47; Municipal Committee Karnal v. Mehlo Ram, 1976 PLR 453. He further relies on the judgment rendered in the case of Municipal Committee Sirhind v. Ishwar Dass and another, (2000) 1 PLR 691. 8. 1971 Curr. L.J. 47; Municipal Committee Karnal v. Mehlo Ram, 1976 PLR 453. He further relies on the judgment rendered in the case of Municipal Committee Sirhind v. Ishwar Dass and another, (2000) 1 PLR 691. 8. Having have given my thoughtful consideration to the respective submissions made by the learned counsel for the parties and after going through the record, I am of the considered opinion that this appeal deserves to be allowed as agricultural land allegedly belonging to the Municipal Council is involved and a decree has already been passed in favour of the plaintiffs. Their Lordships of the Supreme Court in paras 9, 10 and 11 of United Bank of India v. Naresh Kumar and others, AIR 1997 SC 3 observed as under : "In cases like the present where suits are instituted or defended on behalf of a Public Corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable. It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6, Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleading on behalf of the Company. Order 29, Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by or against a corporation the Secretary or any Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Order 29, Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by or against a corporation the Secretary or any Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6, Rule 14 together with Order 29, Rule 1 of the Code of Civil Procedure, it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and dehors Order 29 Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6, Rule 14 of the Code of Civil Procedure. A person may be expressly authorised to sign the pleadings on behalf of the Company, for example, by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of the individual. In absence thereof and in cases where pleadings have been singed by one of its officers a Corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied. The Court can on the basis of the evidence on record, and after taking all the circumstances of the case, specifically with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of the signing of the pleadings by its officer. The Courts below could have held that Shri L.K. Rohatgi must have been empowered to sign the plaint on behalf of the appellant. In the alternative it would have been legitimate to hold that the manner in which the suit was conducted showed that the appellant bank must have ratified the action of Shri L.K. Rohatgi in signing the plaint. The Courts below could have held that Shri L.K. Rohatgi must have been empowered to sign the plaint on behalf of the appellant. In the alternative it would have been legitimate to hold that the manner in which the suit was conducted showed that the appellant bank must have ratified the action of Shri L.K. Rohatgi in signing the plaint. If, for any reason whatsoever, the Courts below were still unable to come to this conclusion, then either of the appellate Courts ought to have exercised their jurisdiction under Order 41, Rule 27(1)(b) of the Code of Civil Procedure and should have directed a proper power of attorney to be produced or they could have ordered Shri L.K. Rohatgi or any other competent person to be examined as a witness in order to prove ratification or the authority of Shri L.K. Rohatgi to sign the plaint. Such a power should be exercised by a Court in order to ensure that injustice is not done by rejection of a genuine claim." The judgment in the case of Naresh Kumar (supra) has been followed by this Court in the case of Municipal Corporation Ludhiana v. M/s. Preet Builders Pvt. Ltd., 1998(3) PLR 352. In that case appeal filed by the counsel for the Municipal Corporation who was authorised to act on behalf of the Municipal Corporation was dismissed by the Addl. District Judge on the ground that no authority was given to the counsel. This Court while setting aside the order of the Additional District Judge held that there was authority with the counsel to file appeal and relied upon the observations made in the Naresh Kumars case (supra). Various judgments which have been cited by the learned counsel for the plaintiffs Shri K.D. Aggarwal have to be viewed and considered in the light of the observations made by the Supreme Court. 9. The Division Bench Judgment of the Lahore High Court in Bawa Bhagwan Dasss case (supra) is absolutely distinguishable. In that case, no resolution has been passed by the Municipal Committee authorising the Executive Officer to file an appeal. 9. The Division Bench Judgment of the Lahore High Court in Bawa Bhagwan Dasss case (supra) is absolutely distinguishable. In that case, no resolution has been passed by the Municipal Committee authorising the Executive Officer to file an appeal. There reliance was placed on the provisions of Section 4 of the Punjab Municipal (Executive Officers) Act 1941 of argue that the executive power, for the purpose of carrying out administration of the municipality, vested in the Executive Officer and on that basis, there was no necessity to pass a separate resolution. The argument was rejected by the Division Bench. Reliance of Shri K.D. Aggarwal on the judgment in the case of Murti Shri Raghunath Jis case (supra) is also misplaced. The Division Bench was dealing with Section 6 of the Societies Registration Act which required a specific resolution authorising the filing of appeal against the order of the trial Court. Such is not the position in the present cases before me as no provision has been cited to show any such requirement. Even the judgment in the case of Ishwar Dass (supra) does not advance the case of the plaintiffs. In that case also there was no resolution authorising the Executive Officer to file/refile the suit or to defend or file appeal. There is no requirement of any law that the resolution should be set out in the memorandum of appeal 10. In so far as the judgments cited by Shri V.K. Kataria are concerned, they lend substantial support to the arguments advanced by the learned counsel. The case of Garib Chand (supra) involves the filing of an appeal by the Municipal Committee and the Executive Officer was authorised to defend the same on behalf of the Municipal Committee. In that case no objection was taken regarding the competence of the Executive Officer to the filing of the appeal before the first appellate Court on account of absence of resolution. When this objection was taken for the first time, the High Court repelled the objection taken before it. Similarly, in the case of Balbir Singh (supra), the resolution which was passed by the Board of Directors of the Bank authorising the General Manager of defend the suit was considered sufficient for filing of appeal. Moreover, the plaintiffs has not suffered any prejudice by the resolution dated 15.1.1980 filed on record. Similarly, in the case of Balbir Singh (supra), the resolution which was passed by the Board of Directors of the Bank authorising the General Manager of defend the suit was considered sufficient for filing of appeal. Moreover, the plaintiffs has not suffered any prejudice by the resolution dated 15.1.1980 filed on record. The object of authorisation by the resolution appears to be that the corporate bodies are not hoodwink by the presentation of pleadings by way of defence or appeal in the courts by strangers. To guard against such unscrupulous elements in the working of the corporate bodies the passing of resolution has been emphsised. Another object of authorising the filing of pleadings or appeal before the Courts could be that a decision is there to contest the case or file an appeal after its proper examination. All these objects are completely satisfied in the present case. It is no bodys case that the appeal was filed by a persona non-grata or that there was no legal opinion for the filing of an appeal. 11. Therefore, the alternative question posed in para 2 of this judgment is answered in the affirmative and it is held that resolution no. 6 dated 15.1.1980 was adequate to arm the Executive Officer to file the appeal before the learned Addl. District Judge. 12. In view of the reasons stated above, the appeal is allowed. Judgment of the learned District Judge dated 29.8.1981 is set aside. The learned District Judge is directed to decide the appeal on merits after affording opportunity of hearing to the parties. Considering the fact that the judgment was rendered by the District Judge on 29.8.1981 i.e. over 20 years ago, I deem it appropriate to issue directions to the District Judge, Fatehgarh Sahib to decide this appeal within a period of six months. 13. The parties through their counsel are directed to appear before the Ld. District Judge, Fatehgarh Sahib on 20.9.2001. 14. The Bench Secretary is directed to supply a copy of this order, after due attestation, under his signatures to the learned counsel for the parties. Registry is also directed to send a copy of this order alongwith the records to the court concerned before the date fixed. Appeal allowed.