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Jagdish Prasad And Others v. Sukh Ram .
Factual and Procedural Background
The dispute arose out of a partition suit between two branches of a family descended from a common ancestor. The trial court decreed an equal division of the property. Both sides appealed to the Rajasthan High Court:
- Civil First Appeal No. 134 of 1986 – filed by the plaintiffs (present appellants).
- Civil First Appeal No. 49 of 1986 – a cross-appeal filed by the defendant-respondents.
The appellants’ original counsel, Shri R.P. Goyal, died in May 1989 and was replaced by Shri P.C. Jain, who filed a Vakalatnama only in Appeal 134/1986. On 18-7-1989 Appeal 134/1986 was dismissed for default due to counsel’s absence but was restored on 20-12-1989. Meanwhile, the cross-appeal (49/1986) was taken up on 21-7-1989 and decided ex parte against the appellants because no counsel was present.
An application to set aside the ex parte decree in Appeal 49/1986 was rejected by a Single Judge on 19-1-1990 on the ground that Shri P.C. Jain held no Vakalatnama in that case. A special appeal was also dismissed by a Division Bench on 23-4-1997. The matter then came before the Supreme Court by way of special leave, which was granted.
Separately, an application to bring on record the legal representatives of deceased petitioner Gulabi Devi was dismissed as not maintainable because her death occurred while the case was still before the High Court.
Legal Issues Presented
- Whether, under Rule 437 of the Rajasthan High Court Rules, 1952, a Vakalatnama filed in the principal appeal suffices to authorize counsel to appear in the corresponding cross-appeal, obviating the need for a separate Vakalatnama.
- Consequently, whether the High Court erred in refusing to entertain the appellants’ application to set aside the ex parte decree in Civil First Appeal No. 49 of 1986 on the ground of lack of authority of counsel.
Arguments of the Parties
Appellants’ Arguments
- Invoked Rule 437 of the Rajasthan High Court Rules, 1952, which explicitly states that in a cross-appeal an advocate who has already filed a Vakalatnama for the appellant in the main appeal need not file a fresh Vakalatnama to represent the same client as respondent in the cross-appeal.
- Contended that the Vakalatnama filed by Shri P.C. Jain in Appeal 134/1986 automatically authorized him to appear for the appellants in Appeal 49/1986.
Respondents’ Position
No counsel appeared for the respondents; the opinion records no arguments on their behalf.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Supreme Court analyzed Rule 437 and emphasized its underlying purpose: to treat a Vakalatnama filed in the main appeal as valid authority in the related cross-appeal arising from the same judgment. It found the High Court’s interpretation overly technical and contrary to the rule’s object.
Key points of the Court’s reasoning:
- The dismissal of Appeal 134/1986 for default on 18-7-1989 did not extinguish the authority granted to Shri P.C. Jain to represent the appellants in the cross-appeal, because the Vakalatnama remained operative for all proceedings connected with the same judgment.
- The High Court should have considered the appellants’ application to set aside the ex parte decree on merits rather than rejecting it for want of a fresh Vakalatnama.
- Failing to give effect to Rule 437 defeated its procedural purpose and unjustly deprived the appellants of a hearing in Appeal 49/1986.
Holding and Implications
HELD: The appeal is allowed. The Supreme Court sets aside (i) the Division Bench judgment dated 23-4-1997 and (ii) the Single Judge’s order dated 19-1-1990. The application to set aside the ex parte decree dated 21-7-1989 in Civil First Appeal No. 49 of 1986 is allowed, the ex parte decree is vacated, and Appeal 49/1986 is remitted to the Rajasthan High Court for fresh hearing along with Appeal 134/1986.
Implications: The decision restores both appeals to the High Court, ensuring that the appellants receive a hearing on merits. The ruling clarifies the practical application of Rule 437 but does not establish a new substantive precedent beyond affirming the rule’s plain intent.
1. An application has been filed for bringing on record the legal representatives of deceased Gulabi Devi, Petitioner 2. The said application shows that Gulabi Devi died on 7-2-1997 when the matter was pending in the High Court. Since Gulabi Devi died when the matter was pending before the High Court, the application for bringing on record her legal representatives is not maintainable in this Court. The names of Petitioners 2(a) to 2(p) in the special leave petition are directed to be deleted from the array of parties. The failure to bring on record the legal representatives of Gulabi Devi is of no consequence since Gulabi Devi had been impleaded as the legal representative of Hari Ram, one of the plaintiffs, and the estate of Hari Ram is represented by Petitioners 1 and 3, the other legal representatives of Hari Ram.
2. Special leave granted.
3. The parties are the descendants of a common ancestor. The plaintiffs filed a suit for partition wherein the trial court passed a decree dividing the property equally between the two branches. Feeling dissatisfied with the said decree of the trial court, the plaintiffs filed an appeal (Civil First Appeal No. 134 of 1986) before the High Court of Rajasthan, Jaipur Bench, Jaipur. The defendant-respondents also filed a cross-appeal (Civil First Appeal No. 49 of 1986) against the decree of the trial court. The appellants had engaged Shri R.P Goyal as their counsel to represent them in both the appeals. After the death of Shri R.P Goyal in May 1989, the appellants engaged Shri P.C Jain, Advocate to represent them in both the matters. Shri P.C Jain filed his Vakalatnama in Civil First Appeal No. 134 of 1986. Civil First Appeal No. 134 of 1986 came up for hearing before the High Court on 18-7-1989, but since Shri Jain was not present in the Court when the matter was called, Civil First Appeal No. 134 of 1986 was dismissed for default. The said appeal was, however, subsequently restored on 20-12-1989. The other appeal (Civil First Appeal No. 49 of 1986) filed by the defendant-respondents came up for hearing before the High Court on 21-7-1989 on which date, in the absence of the counsel for the appellants, the said appeal was decided ex parte against them. The appellants submitted an application for setting aside the said ex parte order dated 21-7-1989 in Civil First Appeal No. 49 of 1986. The said application was dismissed by the learned Single Judge by order dated 19-1-1990 on the view that there was no Vakalatnama in favour of Shri P.C Jain, Advocate in respect of Civil First Appeal No. 49 of 1986 and he had no authority to represent the appellants herein. Special appeal filed against the said order of the learned Single Judge was dismissed by the Division Bench of the High Court by the impugned judgment dated 23-4-1997. The learned Judges on the Division Bench of the High Court have agreed with the view taken by the learned Single Judge that since there was no Vakalatnama in favour of Shri P.C Jain in Civil First Appeal No. 49 of 1986, he could not appear for the appellants herein in the said case and, therefore, he could not move the application for setting aside the ex parte decree passed in the said appeal.
4. We have heard Shri S.K Jain, the learned counsel for the appellants. Nobody has entered appearance on behalf of the respondents even though duly served.
5. Shri S.K Jain has relied upon Rule 437 of the Rules of the High Court of Judicature for Rajasthan, 1952 (hereinafter referred to as “the Rules”) which reads as under:
“437. No fresh Vakalatnama in cross-appeals and cross-objection.—In cross-appeal, an Advocate, who has already filed a Vakalatnama for the appellant, shall not be required to file another Vakalatnama for his client as respondent in the cross-appeal.
Similarly Vakalatnama filed by counsel for the appellant in the appeal and by counsel for the respondent in cross-objections will cover both the appeal and the cross-objections.”
6. The submission of Shri S.K Jain is that where cross-appeals are filed in the High Court against a judgment, a separate Vakalatnama is not required to be filed in the cross-appeal and that the Vakalatnama filed on behalf of the appellant in the main appeal is treated as appearance on behalf of the respondent in the cross-appeal. It is urged that since Shri P.C Jain had filed Vakalatnama on behalf of the appellants in Civil First Appeal No. 134 of 1986 filed by the appellants, the said Vakalatnama should be treated as authority for Shri P.C Jain to appear on behalf of the appellants in the cross-appeal, i.e, Civil First Appeal No. 49 of 1986.
7. The Division Bench of the High Court has held that Rule 437 does not lend any assistance to the appellants in the present case because on 21-7-1989 when Civil First Appeal No. 49 of 1986 was decided ex parte against the respondents (appellants in Civil First Appeal No. 134 of 1986) the other appeal had already been disposed of and the Vakalatnama in that appeal could not be treated as an authority for Shri P.C Jain to appear in Civil First Appeal No. 49 of 1986. In taking the said view, the High Court, in our opinion, has not given effect to the object underlying Rule 437 of the Rules. The said Rule postulates that where a cross-appeal has been filed against the same judgment, separate Vakalatnama is not required to be filed on behalf of the respondent in the cross-appeal if the said party is the appellant in the appeal filed against the said judgment and Vakalatnama has been filed in that appeal. Shri P.C Jain had filed his Vakalatnama in Civil First Appeal No. 134 of 1986. The fact that the said appeal had been dismissed for default on 18-7-1989 would not mean that the authority which was given to Shri P.C Jain to represent the appellants as respondents in Civil First Appeal No. 49 of 1986 had ceased to be operative. The High Court was, therefore, in error in not considering the application for setting aside the ex parte decree filed by the appellants in Civil First Appeal No. 49 of 1986 on the ground that Shri P.C Jain had no authority to appear in that matter and to seek setting aside the ex parte decree passed against the appellants in that appeal. The appeal is, therefore, allowed, the impugned judgment of the Division Bench of the High Court dated 23-4-1997 as well as the order of the learned Single Judge dated 19-1-1990 are set aside. The application for setting aside the ex parte decree dated 21-7-1989 passed in Civil First Appeal No. 49 of 1986 is allowed and the said ex parte decree passed in the said appeal is set aside. Civil First Appeal No. 49 of 1986 is remitted to the High Court for consideration. It may be heard along with Civil First Appeal No. 134 of 1986 which is said to be pending in the High Court. No order as to costs.
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