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Case Number

D.B Civil Special Appeal No. 53 of 1966

Attorney(S)

Sumerchand Bhandari, for Appellant;
Rajnarain, Additional Advocate General for Union of India, Respondent

Judges

J. Narayan

Acts

sub-rule (6) added to rule 4 of order 3
sub-rule (1) of rule of order 3.12.
sub-rule (2) Under sub-rule (1)
pleader.9. Rule 2
act. Sub-rule (6)
Sub-rule (2)
Sub-rule (6)
sub-rule (5).

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Smart Summary

Judgment Summary — Jagat Narayan, C.J.

Factual and Procedural Background

This is a plaintiff's special appeal against the judgment of a learned Single Judge in a second appeal that resulted in dismissal of the plaintiff's suit for recovery of compensation. The suit had originally been decreed by the trial court and the first appellate court.

Facts found by the first appellate court (and treated as binding here): A firm Doongarmal Mohanlal (proprietor Mohanlal) of village Dholipal, Ganganagar, sent its munim Ridhkaran to Kesinga (District Kalahandi, Orissa) to sell gram. After sale, Ridhkaran sent the sale proceeds to the firm by post on 18-7-57 by a registered insured parcel containing currency notes insured for Rs. 2,500. During transit the parcel was tampered with and notes worth Rs. 1,000 were removed; the written insured amount had been altered from Rs. 2,500 to Rs. 1,500. Kesinga Post Office records and the postal receipt given to Ridhkaran showed the parcel insured for Rs. 2,500, but records at Ganganagar and Dholipal Post Offices and the acknowledgment signed by Mohanlal showed Rs. 1,500. Mohanlal later learned of the tampering and that Rs. 1,000 had been removed. On 3-9-57 Mohanlal transferred his claim to the plaintiff firm Mohanlal Ramchandra of Ganganagar, which sued for recovery of Rs. 1,040 (including Rs. 40 interest).

The Union of India contested the suit by filing a written statement signed and verified by Shri Narula, Superintendent of Post Offices, North Rajasthan. The trial court decreed recovery of Rs. 1,000 for the plaintiff. The Union appealed to the District Judge, Ganganagar, and that appeal was dismissed (i.e., the first appellate court affirmed the decree). The Union then filed a second appeal in the High Court. The memorandum of second appeal was signed and presented by Shri Raj Narain (then Assistant Government Advocate), accompanied by a Vakalatnama signed by Shri Narula authorizing Shri Raj Narain to act and plead.

The plaintiff-appellant raised a preliminary objection that the appeal was incompetent because the memorandum had been presented by Shri Raj Narain who was not duly authorized to act for the Union of India. The Single Judge overruled that objection and entertained the second appeal; the plaintiff pursued this special appeal challenging the error in overruling the preliminary objection. The High Court (Jagat Narayan, C.J.) heard the matter and concluded that the presentation of the memorandum by Shri Raj Narain was unauthorized and therefore the second appeal was incompetent. The Court allowed the special appeal, set aside the Single Judge's judgment and restored the decree passed by the first appellate court, awarding costs to the appellant for this Court and for the second appeal.

Legal Issues Presented

Whether Shri Raj Narain (then Assistant Government Advocate) was duly authorized to present the memorandum of second appeal in the High Court on behalf of the Union of India.
Whether S.R.O. No. 3920 dated 5-12-57 (appointing Government Advocates of the Rajasthan High Court to be Government Pleaders for purposes of O.27 r.8-B) and the definition in O.27 r.8-B operate to authorize such Government Advocates (or their assistants) to act for the Central Government under Order 3 r.2 (i.e., to present appeals) without separate written authority.
Whether S.R.O. 351 dated 25-1-58 (authorising certain gazetted officers, including Superintendents of Post Offices, to sign and verify pleadings under O.27 r.1) also amounts to an authority to act under O.27 r.2 (i.e., present appeals) on behalf of the Central Government.
Whether sub-rule (6) added to Rule 4 of Order 3 (which relieves a Government pleader under O.27 r.8-B from presenting documents empowering him to act, requiring instead filing a memorandum of appearance) exempts such pleaders from the written appointment required by sub-rule (1) of Rule 4 of Order 3.
Whether the presentation of the memorandum by an allegedly unauthorised person is an irregularity curable under Section 99 of the Civil Procedure Code.
Whether a failure to object to an unauthorised presentation in a lower court (e.g., before the District Judge) constitutes a waiver that prevents raising the objection in the higher court (the High Court).

Arguments of the Parties

Appellant (Plaintiff) — Main Contentions

The second appeal was incompetent because the memorandum of appeal had been presented by Shri Raj Narain, who was not duly authorised to act for the Union of India.

Respondent (Union of India / Shri Raj Narain and learned Additional Advocate-General)

Reliance on S.R.O. No. 3920 (5-12-57): Government Advocates of the Rajasthan High Court were appointed Government Pleaders for the purposes of Order 27 r.8-B, and therefore such Government Advocates should be deemed authorised to act for the Central Government under Order 3 r.2.
Reliance on S.R.O. 351 (25-1-58): Officers specified in the schedule (including Gazetted Officers of Posts and Telegraphs Department such as the Superintendent of Post Offices) were appointed as persons by whom plaints and written statements shall be signed and, if acquainted with facts, to verify them; thus the Superintendent (Shri Narula) was authorised to sign and verify the written statement and verify it, and that authority should be treated as sufficient for purposes of acting.
Reliance on sub-rule (6) added to Rule 4 of Order 3 (Rajasthan addition): Since a Government pleader within O.27 r.8-B is not required to present any document empowering him to act (but only to file a memorandum of appearance), a Government Advocate appointed as Government pleader should be assumed authorised to act.
The presentation of the memorandum by an unauthorised person is merely an irregularity curable under Section 99 CPC and should not render the appeal incompetent.
The memorandum of appeal had been presented in the court of the District Judge by Shri K.C. Jain (Government pleader) under a Vakalatnama signed by the Superintendent of Post Offices without objection by the plaintiff-appellant; that failure to object in the District Judge's court should amount to waiver of similar objections later.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court examined statutory rules and the Code of Civil Procedure provisions relied upon by the respondent and analysed their proper scope and interaction with Order 3 and Order 27 of the Code.

1. Nature of the act of presenting a memorandum of appeal: The Court started from the premise that presenting a memorandum of appeal amounts to "acting" for the party in the court in which the memorandum is presented, and therefore the person presenting it must be authorised to act under the Code (Order 3 dealing with recognised agents and pleaders).

2. Interpretation of O.27 r.8-B and S.R.O. 3920: Rule 8-B provides definitions for the terms "Government" and "Government pleader" in the context of Order 27. The Court held that rule 8-B only dictates how the expressions "Government" and "Government pleader" are to be read (for example, "Government" read as "Central Government" and "Government pleader" read as the pleader the Central Government appoints). It does not itself constitute an independent grant of authority to any pleader to act on behalf of the Central Government under Order 3 r.2. Because rule 2 of Order 27 (which speaks of persons authorised to sign and verify pleadings) does not use the expression "Government pleader," the mere appointment of Government Advocates as Government Pleaders under S.R.O. 3920 does not itself authorise those pleaders to act (i.e., to present appeals) without express authority under Order 3.

3. Scope of S.R.O. 351 (25-1-58) appointing officers to sign and verify pleadings: The Court recognised that Shri Narula, as Superintendent of Post Offices (a gazetted officer included in the schedule), was authorised to sign and verify the written statement under O.27 r.1 and thus properly signed and verified the written statement. However, that limited authority to sign and verify pleadings under rule 1 does not amount to a general authority to act under rule 2 of Order 27 (which would include presenting a memorandum of appeal). The Court emphasised the distinction between limited authority to sign/verify pleadings and broader authority to act generally for the Government in judicial proceedings.

4. Effect of sub-rule (6) added to Rule 4 of Order 3: The Court analysed sub-rule (6), which provides that a Government pleader within the meaning of O.27 r.8-B shall not be required to present any document empowering him to act but must file a memorandum of appearance signed by himself including particulars required by sub-rule (5). The Court held that this provision is an exception to procedural filing requirements (i.e., the pleader need not present the written instrument of appointment in court). It does not exempt a Government pleader from the substantive requirement of having a general or special authority in writing to act on behalf of the Government in the first place. In short, sub-rule (6) does not relieve the Government pleader from needing express authority (general or special) in writing to act for the Government; it only relaxes the procedural requirement of producing that document in court.

5. Section 99 CPC: The respondent argued the defect was merely an irregularity curable under Section 99 (which prevents reversal of a decree for procedural errors not affecting merits or jurisdiction). The Court rejected application of section 99 because that provision pertains to errors, defects or irregularities in the proceedings of a lower court that are raised in appeal. Here the defect (presentation of the memorandum by an unauthorised person) was challenged in the same court where the alleged defect occurred (i.e., the High Court where the memorandum was presented). Thus section 99 did not save the defective presentation.

6. Waiver argument in respect of earlier presentation: The respondent argued that because no objection was taken in the District Judge's court to a memorandum presented there by a Government pleader under a Vakalatnama, the plaintiff-appellant had waived similar objections later. The Court reasoned that the plaintiff's failure to object in the District Judge's court amounted to waiver in that court but did not preclude the plaintiff from raising an objection to the presentation of the memorandum of appeal in the next higher court by an unauthorised person.

7. Conclusion from the analysis: On these bases the Court found Shri Raj Narain (then Assistant Government Advocate) had no authority to present the memorandum of second appeal in the High Court. Consequently, the second appeal was incompetent and should have been dismissed.

Holding and Implications

Holding:

The special appeal is allowed. The memorandum of second appeal presented by Shri Raj Narain was presented by a person not authorised to act for the Union of India; the second appeal was therefore incompetent and should have been dismissed. The judgment and decree of the learned Single Judge are set aside and the decree passed by the first appellate court is restored.

Direct consequences and costs:

The decree passed by the first appellate court in favour of the plaintiff is restored.
The plaintiff-appellant is entitled to recover the costs of this Court and of the second appeal.

The Court expressly did not decide the substantive merits of the suit on the facts proved, observing that it was unnecessary to go into whether the suit should have been decreed on the facts because the second appeal was incompetent for lack of authorisation. The opinion does not purport to establish any broader precedent beyond the legal conclusions reached concerning authority to present appeals under Order 3 and Order 27 and the effect of the cited S.R.Os and sub-rule (6) to which the Court limited its reasoning.

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Firm Mohanlal Ramchandra v. Union Of India

Jagat Narayan, C.J:— This is a plaintiff's special appeal against the judgment of learned Single Judge of this Court in second appeal dismissing its suit for the recovery of compensation which was decreed by the trial court and the first appellate court.

2. The facts which were taken to have been proved by the first appellate court and which are binding in this special appeal are these. There was a firm Doongarmal Mohanlal at village Dholipal in Ganganagar district, the proprietor of which was Mohanlal. Ridhkaran was the Munim of that firm. He was sent to Kesinga, (District Kalihandi, Orissa) to sell gram. After selling the gram he sent the sale proceeds to the said firm by post. On 18-7-57 he sent currency notes for Rs. 2,500/- by a registered insured parcel. The parcel was contained in a cloth cover on which it was written both in figures and words that it was insured for Rs. 2,500. During transit between Kesinga and Ganganagar the parcel was tampered with and currency notes far Rs. 1,000 were removed from it. At the same time the amount of Rs. 2500 written in words and figures was altered to Rs. 1,500. In the records of Kesinga Post Office the parcel was shown as having been insured for Rs. 2,500. The same amount was written on the postal receipt given to Ridhkaran. But in the records of Ganganagar and Dholipal Post Offices the amount for which this parcel was shown to have been insured was Rs. 1,500 only. In the acknowledgment receipt which was signed by Mohanlal when the insured parcel was delivered to him the amount of Rs. 1500 only was written as the sum for which the parcel was insured. On 1-8-57 Ridhkaran came to Dholipal and told Mohanlal that he had sent Rs. 2,500 and had insured the parcel for the same amount. It was then that Mohanlal learnt that the parcel had been tampered with and currency notes for Rs. 1,000 were removed. On 3-9-57 Mohanlal transferred his claim to the plaintiff firm Mohanlal Ramchandra of Ganganagar which brought the present suit for the recovery of Rs. 1,040, out of which the sum of Rs. 40 was claimed as interest.

3. The Union of India contested the suit by filling a written statement which was signed and verified by Shri Narula, Superintendent of Post Offices, North Rajasthan. The defendant denied the material allegations made in the plaint. The trial court decreed the suit for the recovery of Rs. 1,000. The appeal of the Union of India to the District Judge, Ganganagar, was dismissed. A second appeal was then filed on behalf of the Union of India in the High Court.

4. The memorandum of appeal was signed and presented by Shri Rajnarain, who was then Assistant Government Advocate in the High Court of Rajasthan. Along with this memorandum of appeal Shri Rajnarain filed a Vakalatnama signed by Shri Narula. Shri Narula authorised Shri Rajnarain to act as well as to plead by this Vakalatnama.

5. A preliminary objection was taken on behalf of the plaintiff appellant that the appeal was incompetent as the memorandum of appeal had been presented by Shri Raj Narain, who had not been duly authorised to act on behalf of the Union of India. This preliminary objection was overruled by the learned Single Judge. The first contention on behalf of the appellant before us is that the preliminary objection was erroneously rejected by the learned Single Judge. Having heard the learned counsel for the parties we are satisfied that this contention must be upheld.

6. Shri Raj Narain is now the Additional Advocate General of the State of Rajasthan and he appeared on behalf of the Union of India before us. He relied on all the arguments advanced by the learned Single Judge in support of his finding and advanced some fresh arguments also. We shall deal with all of them.

7. Firstly, he has relied on S.R.O (Statutory Rules and Orders) No. 3920 dated 5-12-57 of the Government of India by which the Government Advocate of the Rajasthan High Court were appointed to be Government Pleaders for the purposes of O. 27 r. 8 B.C.P.C in relation to any suit by or against the Central Government,

8. It is not disputed that presenting a memorandum of appeal amounts to acting for the party on behalf of whom the memorandum of appeal is presented. Order 3 deals with recognised agents and pleaders Rule 1 of this order lays down that any appearance, application or act in any court required to be done by a party may be done by the party in person or by his recognised agent or by a pleader.

9. Rule 2 of this order lays down inter alia ‘that recognised agents of parties are persons holding powers-of-attorney authorizing them to make and do such appearances, applications and acts on behalf of such parties. The relevant part of rule 4 of order 3 runs as follows:

“(1) No pleader shall act for any person in any Court unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorized by or under a power-of-attorney to make such appointment.

(2) Every such appointment shall be filed in Court and shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client.

(5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party unless he has filed in Court a memorandum of appearance signed by himself and stating—

(a) the names of the parties to the suit,

(b) the name of the party for whom he appears, and

Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party.

(6) No Government pleader within the meaning of O. 27, r. 8-B shall be required to present any document empowering him to act, but such pleader shall file a memorandum of appearance signed by himself and stating the particulars mentioned in sub-rule (5).” (Added by Rajasthan)

Order 27 deals with suits by or against the Government. Rules 1 and 2 run as follows:

“(1) In any suit by or against the Government, the plaint or written statement shall be signed by such person as the Government may, by general or special order, appoint in this behalf, and shall be verified by any person whom the Government may so appoint and who is acquainted with the facts of the case.

(2) Persons being ex-officio or otherwise authorized to act for the Government in respect of and judicial proceeding shall be deemed to be the recognised agents by whom appearances, acts and applications under this Code may be made or done on behalf of the Government.”

Rule 8-B is in the following words:

“In this Order unless otherwise expressly provided Government” and “Government pleader” means respectively—

(a) in relation to any suit by or against the Central Government, or against a public officer in the service of that Government, the Central Government and such pleader as that Government may appoint whether generally or specially for the purposes of this Order•

(b) xxxxxxxxx and

(c) in relation to any suit by or against a State Government or against a public officer in the service of a State, the State Government and the Government pleader as defined in clause (7) of sec. 2, or such other pleader as the State Government may appoint, whether generally or specially, for the purposes of this Order.”

The contention of the learned Additional Advocate-General is that as the Government Advocate was appointed as Government pleader under rule 8-B and that rule applies to every rule in O. 27 he should be deemed to have been authorised to act under rule 2 of order on behalf of the Central Government. This argument in our opinion is wholly untenable. All that rule 8-B lays down is that where ever the expressions “Government” and “Government pleader” occur in any rule of order 27 they shall be read as “Central Government” and such pleader as the Central Government may appoint whether generally or specially for the purposes of this order. In rules 1 and 2 of order 27 only the expression “Government” occurs and in relation to the present proceedings this will be read as “Central Government”. The expression “Government pleader” does not occur in rule 2. Therefore, it cannot be argued that every Government pleader who is authorised to appear on behalf of the Central Government is also authorised to act for the Central Government without any express authority in that behalf.

9. Under S.R.O 351 dated 25-1-58 the officers specified in the schedule annexed thereto were appointed as persons by whom plaints and written statements by or against the Central Government shall be signed and those of such officers who were acquainted with the facts of the case were further authorised to verify plaints and written statements in such suits. All Gazetted Officers of the Indian Posts and Telegraphs Department are included in this schedule. The Superintendent of Post Offices is a Gazetted Officer of the Posts and Telegraphs Department. As such Shri Narula was authorised to sign the written statement as contemplated by O. 27, r. 1. Further as he was acquainted with the facts of the case he was also authorised to verify it under the same rule.

10. The learned Additional Advocate-General contended that because the Superintendent of Post Offices has been authorised to sign and verify the written statement he should be deemed to have been authorised to act on behalf of the Central Government. This contention is also untenable. There are two distinct rules under O. 27 namely rules 1 and 2. Under rule 1 only a limited authority to sign and verify pleadings is given. It is only a person authorised to act without any such limitation who can present a memorandum of appeal. The Superintendent of Post Offices was not authorised to act for the Central Government under O. 27 r. 2 by S.R.O 351.

11. Another contention on behalf of the Additional Advocate General is that in view of Sub-rule (6) added to rule 4 of order 3 by Rajasthan he should be deemed to be authorised to act for the Central Government as he was appointed Government pleader under O. 27 r. 8B. This contention also is without force. All that Sub-rule (6) lays down is that such Government pleader shall not be required to present any document empowering him to act. Sub-rule (6) is an exception to Sub-rule (2) Under sub-rule (1) no pleader can act for any person unless he has been appointed by a document in writing. Sub-rule (2) lay down that such document in writing authorising him to act for any person shall be filed in court. Sub-rule (6) lays down that a Government pleader within the meaning of O. 27 r. 8-B shall not be required to present any document empowering him to act, and it shall be sufficient for him to file a memorandum of appearance signed by himself stating the particulars mentioned in sub-rule (5). But a Government pleader cannot act without a general or special authority in writing empowering him to do so. He is not exempt from the requirement of sub-rule (1) of rule of order 3.

12. Next it was argued by the learned Additional Advocate General that the presentation of the appeal by him is an irregularity which is curable under sec. 99 C.P.C This section runs as follows:

“99. No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any mis-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the court.”

13. The section deals with objections raised in appeal, as regards errors, defects of irregularities of procedure in the lower court. It has no application in the present case as the presentation of the memorandum of appeal by an unauthorised person was challenged on behalf of the plaintiff-appellant in the very court in which the defect took place.

14. Next it was argued that the memorandum of appeal in the court of the District Judge was presented by Shri K.C Jain, Government pleader under a Vakalatnama signed by the Superintendent of Post Offices and no objection was taken to it on behalf of the plaintiff appellant in that court and so he should be deemed to have waived defects of a similar nature in future also. This argument is also untenable. As no objection was taken to the presentation of the appeal by an unauthorised person in the court of the District Judge the plaintiff-appellant will be deemed to have waived objection against it which he could have taken. But he is not prevented from taking an objection to the presentation of a memorandum of appeal in the next higher court by an unauthorised person.

15. We therefore hold that Shri Raj Narain the then Assistant Government Advocate of the Rajasthan High Court had no authority to present the memorandum of second appeal in the High Court. The second appeal was therefore incompetent and should have been dismissed.

16. On behalf of the plaintiff-appellant it was also contended before us that S.R.O 3920 of 5th December 1957 only authorised the Government Advocates of the Rajasthan High Court to appear for the Central Government and as Shri Raj Narain was only an Assistant Government Advocate he was not authorised even to appear for the Central Government. It is unnecessary for us to go into the question as to whether the expression “Government Advocates” in the schedule to S.R.O 3920 included the Assistant Government Advocates also in the present case. We therefore leave it open.

17. It is also unnecessary for us to go into the question whether the suit should have been decreed on the facts proved in the present case as we have held above that the second appeal was incompetent.

18. We accordingly allow the special appeal, set aside the judgment and decree of the learned single Judge and restore the decree passed by the first appellate court. The appellant is entitled to recover costs of this Court and of the second appeal.

Firm Mohanlal Ramchandra v. Union Of India

Judgment Summary — Jagat Narayan, C.J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant (Plaintiff) — Main Contentions

Respondent (Union of India / Shri Raj Narain and learned Additional Advocate-General)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Firm Mohanlal Ramchandra v. Union Of India

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