Citation Codes

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citation codes

Case Number

Civil Regular Second Appeal No. 10 of 1978

Judges

G.C Mital, J.

Acts

provisions of Order XLI Rule 1 of the Code of Civil Procedure.
Order 41, Rule 1 of the Code of Page: 532Civil Procedure
Section 99 of the Code of Civil Procedure.9.
Section 99 of the Code of Civil Procedure
SECTION 172 PUNJAB MUNICIPAL ACT
SECTION 35 PUNJAB MUNICIPAL ACT
SECTION 99 CIVIL PROCEDURE CODE

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Smart Summary

Structured Summary of the Opinion (G.C. Mital, J.)

Factual and Procedural Background

The plaintiff filed a suit challenging Notice Ex. P/1 dated May 31, 1974 issued by the respondent Municipal Committee under section 172 of the Punjab Municipal Act directing the plaintiff to remove an alleged encroachment within three days, failing which the Municipal Committee would remove it at the plaintiff's expense. The relief sought was a declaration that the notice was illegal and void and a permanent injunction restraining the Municipal Committee from demolishing the structure (described as a chappar) on the disputed site.

The Municipal Committee contested the suit, asserting the structure was on a public street and removable under section 172. The trial court by its judgment and decree dated June 1, 1979 decreed the suit in favour of the plaintiff, holding the notice illegal and granting the injunction; the plaintiff was directed to make up court-fee, which was done.

The Municipal Committee appealed to the District Court (heard by an Additional District Judge). The lower appellate court, by judgment and decree dated November 24, 1977, allowed the appeal, set aside the trial court decree and dismissed the suit with costs, holding the plaintiff had encroached on part of the public street and that the notice was legal and valid.

In this Second Appeal the plaintiff-appellant contended that the first appeal before the lower appellate court was incompetent because no resolution of the Municipal Committee authorising the filing of the appeal or authorising a person to sign and file the appeal on its behalf was filed with the appeal. The plaintiff-appellant asked that, on that ground, the second appeal be allowed, the lower appellate court's judgment be set aside, and the trial court's decree be restored.

Legal Issues Presented

Whether the first appeal presented by the respondent Municipal Committee before the lower appellate court was competent in the absence of a Municipal Committee resolution authorising the filing of the appeal or authorising a person to sign and file the appeal on behalf of the Committee.
Whether the resolution produced (Resolution No. 22 dated July 13, 1976), authorising payment of Rs. 230 as expenses for filing the appeal and engagement of counsel, sufficed to constitute authority for filing the appeal.
Whether the plaintiff's failure to raise the competency objection before the lower appellate court or Section 99 of the Code of Civil Procedure precluded raising that objection in this Second Appeal.
Whether an appeal presented by an advocate authorised only by the Executive Officer, without a municipal resolution authorising the Executive Officer to file the appeal, is competent.

Arguments of the Parties

Plaintiff-Appellant's Arguments

The appeal before the lower appellate court was not competent because no resolution of the Municipal Committee was attached to the appeal either (a) deciding to file the appeal against the trial court's judgment and decree, or (b) authorising a person (including the Executive Officer) to sign and file the appeal on behalf of the Municipal Committee.
On this short ground alone the second appeal should be allowed, the lower appellate court's judgment should be set aside and the trial court's decree restored.
Relied on authorities (including Bawa Bhagwan Das, Punjab Agricultural University v. Walia Brothers, and Municipal Committee Ludhiana v. Surinder Kumar) supporting the proposition that local bodies must act by resolution to file appeals and that post-facto resolution beyond the period of limitation does not cure incompetence.
Relied on Order XLI Rule 1 CPC (mandatory requirement that an appeal be signed and presented by a duly authorised agent) and Pat Ram v. Hukam Singh for the proposition that presentation by an advocate requires authority to be shown.

Respondent Municipal Committee's Arguments

The Municipal Committee produced Resolution No. 22 dated July 13, 1976, which authorised spending Rs. 230 for expenses and engagement of counsel to file an appeal, and (it was argued) that this resolution conferred due authority on the Executive Officer to present the appeal through an advocate.
The Municipal Committee contended that the competency point was not raised before the lower appellate court and should therefore not be permitted to be raised in this Second Appeal; reliance was placed on Section 99 CPC to contend the point was waived or barred from being entertained.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bawa Bhagwan Das v. Municipal Committee Rupar through Sardar Sher Singh, Executive Officer; AIR 1943 Lahore 318	Local/municipal bodies must act by resolution; filing of appeal on behalf of a municipal body requires a resolution authorising the filing.	The Court relied on this authority to support the proposition that the Municipal Committee needed to pass a resolution authorising the filing of the appeal and that absence of such resolution rendered the appeal incompetent.
Punjab Agricultural University v. Walia Brothers (1969) 71 PLR 257	Authority supporting the same ratio that municipal/local bodies require resolutions to authorize acts such as filing appeals.	Cited by the plaintiff-appellant and treated as supporting precedent that the Municipal Committee must have passed a resolution to file the appeal; the Court treated these authorities as consistent with its conclusion that the appeal before the lower appellate court was not properly constituted.
The Municipal Committee Ludhiana v. Surinder Kumar; 1970 Cur. L.J. 631; I.L.R (1974) (1) Punj. 420	Held that an Executive Officer has no power under Section 35 of the Punjab Municipal Act to give ex post facto approval beyond the period of limitation; a decision to file appeal must be taken by the Municipal Committee itself; a resolution passed after limitation cannot cure an irregularity.	The Court relied on this decision as directly on point: it supported the conclusion that the absence of a committee resolution authorising the filing of the appeal meant the appeal was incompetent and could not be cured by later acts or by an Executive Officer's purported authorisation.
Pat Ram v. Hukam Singh; 1971 Cur. L.J. 294	Interpretation of Order XLI Rule 1 CPC: the provisions are mandatory; an appeal must be signed and presented by the appellant or a duly authorised advocate/agent.	The Court applied this authority to hold that an advocate could present an appeal for the Municipal Committee only if there was authority to do so; in the absence of municipal resolution authorising the Executive Officer to authorise the advocate, the presentation and signing were without authority.

Court's Reasoning and Analysis

The Court proceeded through a structured legal analysis, limited to the materials and submissions before it:

The Court accepted the foundational principle that a municipal or corporate body acts through resolutions; if a municipal body intends to file an appeal, the decision must be made by the Municipal Committee itself and evidenced by an appropriate resolution.
The burden lay on the Municipal Committee to show that the appeal before the lower appellate court had been filed by an authorised person and was therefore properly constituted so that the lower appellate court could decide it on the merits.
The Municipal Committee was given an opportunity in this Second Appeal to produce any resolutions authorising the filing of the appeal and/or empowering the Executive Officer to sign or authorise the appeal. The only document produced was Resolution No. 22 dated July 13, 1976, authorising payment of Rs. 230 as expenses for filing an appeal and engagement of counsel.
The Court analysed whether that resolution (sanctioning expenditure) could be treated as a decision by the Municipal Committee to file the appeal or as authorisation for the Executive Officer to file the appeal. The Court noted that while one "may infer" from an expenditure sanction that a decision was taken, the Municipal Committee produced no specific resolution authorising the Executive Officer to file the appeal or to authorise an advocate to file it on the Committee's behalf.
The Court turned to precedent (including Municipal Committee Ludhiana v. Surinder Kumar and related authorities) holding that an Executive Officer cannot give ex post facto approval to filing an appeal beyond limitation and that the decision to file must come from the Committee itself. The Court regarded those authorities as establishing that post-facto or insufficient authorisation does not cure the absence of a proper resolution.
The Court rejected the respondent's procedural defence based on Section 99 CPC and waiver. It held that Section 99 (which deals with certain errors or irregularities not affecting the merits or jurisdiction) does not apply where the presentation of the appeal itself is contrary to the mandatory requirements of Order XLI Rule 1 CPC; such a defect goes to the root of the appellate court's jurisdiction to decide the appeal on merits. The Court also observed that waiver must be a conscious act and found no evidence of such a conscious waiver by the plaintiff.
Applying Pat Ram and the mandatory wording of Order XLI Rule 1 CPC, the Court concluded that an appeal must be signed and presented by a duly authorised agent; an advocate could present an appeal only if authorised by the Municipal Committee (or by an Executive Officer who himself was authorised by the Committee). No such municipal authorisation was shown.
On this basis the Court concluded there was no properly constituted appeal before the lower appellate court and therefore the lower appellate court had no jurisdiction to decide the matter on the merits.

Holding and Implications

Holding: THE SECOND APPEAL IS ALLOWED. The Court held that there was no properly constituted appeal before the lower appellate court; therefore that appeal was incompetent and the judgment and decree of the lower appellate court are set aside and the judgment and decree of the trial court are restored.

Implications:

Direct consequence for the parties: the trial court's decree in favour of the plaintiff (declaring the notice illegal and granting injunction) is restored; the lower appellate court's judgment (which had allowed the Municipal Committee's appeal) is set aside.
Costs: because the competency objection was raised in this Court, the judge ordered that the parties bear their own costs.
Precedential effect: the opinion relied on existing precedents to apply settled principles about corporate/local bodies acting only by resolution and the mandatory nature of Order XLI Rule 1 CPC; the opinion does not state that it establishes a new legal principle beyond applying those authorities. (The opinion discusses no additional broader implications beyond the direct effect on the parties.)

Disposition noted in the opinion: "Appeal allowed."

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Garib Chand v. Municipal Committee

G.C Mital, J.:— In this Second Appeal, the counsel for the plaintiff-appellant has raised a point that the first appeal filed by respondent Municipal Committee, before the lower appellate court against the decree of the trial court, decreeing plaintiff's suit was not competent in-as much as no resolution was filed with the first appeal, either taking a decision for filing an appeal against the judgment and decree of the trial court or authorising a person to sign Page: 529and file appeal on behalf of the Municipal Committee and therefore, he submits that on this short ground alone, this second appeal should be allowed and the appeal before the lower appellate court should be incompetent thus setting aside judgment and decree of the lower appellate court and restoring those of the trial court.

2. The plaintiff-appellant filed a suit challanging the validity of Notice Ex. P/1 dated May 31, 1974 issued by respondent-Municipal Committee under section 172 of the Punjab Municipal Act under which the plaintiff was directed to remove the encroachment within a period of three days, failing which the same was to be removed at his expense, by the Municipal Committee. Prayer in the suit is for declaring the impugned Notice Ex P/1 as illegal and void and for permanent injunction restraining the Municipal Committee from demolishing the chappar raised by the plaintiff, on the site in dispute.

3. The Municipal Committee contested the suit on the ground that notice was valid in-as-much as the structure was raised on public street and could be ordered to be removed under section 172 of the Punjab Municipal Act. The following issues were framed in the case:—

1) Whether the plaint is properly valued for the purposes of court-fee and jurisdiction?

2) Whether the impugned Notice is void, illegal, capricious and ineffective?.

3) Whether the plaintiff is entitled to the injunction prayed for?.

4. The trial Court, by its judgment and decree dated June 1, 1979 decreed the suit holding the impugned Notice to be illegal and not binding on the plaintiff and ordered the issue of injunction as prayed for. With regard to issue No. 1, the plaintiff was directed to make up the court-fee which was done. Against the judgment and decree of the trial court, the Municipal Committee took an appeal before the District Court, which was heard by the Additional District Judge. The learned Additional District Judge, by its judgment and decree dated November 24, 1977 allowed the appeal, set aside the decree of the trial court and dismissed the suit with costs throughout, holding that the plaintiff had encroached upon part of public street and as such the Notic??? legal and valid.

5. Before me, counsel for the plaintiff appellant has raised the first point that no competent appeal was presented by a competent person before the District Court, as no resolution, taking a decision to file an appeal against the judgment and decree of the trial court, was filed with the appeal nor any resolution authorising the Executive Officer who gave a ???kalat???ma to the Advocate, who presented the appeal, was attached to the appeal and therefore the filing and presentation of were unauthorised and in the absence of the resolutions, there was no proper appeal before the lower appellate court and as such the judgment and decree of the trial court could not be interferred with on the basis of the incompetent and improperly presented appeal which deserves to be dismissed. In support of bis argument, he rel???ed on Bawa Bhagwan Das v. Municipal Committee Rupar through Sardar Sher Singh Executive Officer, AIR 1943 Lahore 318 Punjab Agricultural University v. Walia Brothers (1969) 71 PLR 257. The Municipal Page: 530Committee Ludhiana v. Surinder Kumar 1970 Cur. L.J 631. The Municipal Committee Ludhiana v. Surinder Kumar I.L.R (1974) (1) Punj. 420, and contended that two things had to be done by the Municipal Committee before filing the appeal:—

i) There should have been a resolution of the Municipal Committee taking a decision to file an appeal against the judgment and decree of the trial court, and;

ii) a resolution giving authority on behalf of the Municipal Committee to a person who could file the appeal himself or could authorise signing and filing of appeal by an authorised advocate.

6. None of the two things were done in this case and therefore, in view of the aforesaid decisions there was no competent appeal which should have been dismissed as incompetent. On the last date of hearing, this matter was put to the counsel for the respondent Municipal Committee so that in the interest of justice, he could show the Court, whether the Municipal Committee had taken a decision for filing an appeal or had ratished the filing of appeal and had authorised the Executive Officer to file the appeal, so that he could file himself or could authorise an advocate to file the same and the case was adjourned for this purpose

7. Today Mr. K.C Puri, the learned counsel for the Municipal Committee had produced a copy of resolution No. 22 dated July 13, 1976 under which the Municipal Committee had authorised the spending of Rs. 230/- as the expenses for filing of appeal and engagement of the counsel against the judgment and decree of the trial court. It is admitted by the counsel that besides the above, there is no other resolution of the Municipal Committee and relying on the same, it is urged by him that there was due authority with the Executive Officer on the basis of the aforesaid resolution and as such the appeal was property presented by the Advocate under the authority of the Executive Officer.

8. The other argument raised by the counsel for the Municipal Committee is that no such point about competency of the appeal was raised by the counsel for the plaintiff before the lower appellate court and as such, should not be allowed to be raised here in second appeal. He further submits the point should be deemed to have been waived and in any event this Court should not interfer with the decision, on merits, by the lower appellate court on this technical objection by viatue of Section 99 of the Code of Civil Procedure.

9. After hearing the learned counsel for the parties, I am of the view that the objection raised by the counsel for the plaintiff-appellant should be allowed to be raised, as the lower appellate court is to decide the appeal on merits only if there was a properly constituted and presented appeal before it. For this, burden lay on the Municipal Committee itself to show that the appeal was filed by an authorised person and as such was properly constituted for being heard and decided on merits. If objection had been raised before the lower appellate court, all that the Municipal Committee had to to show was a resolution or resolutions showing that a decision was taken by the Municipal Committee to file appeal against the judgment and decree of the trial court and about authorising a person to sign and file the appeal. The same thing can be shown by the Municipal Committee here in Second Appeal and as such, there is no prejudice caused to it, if the Page: 531objection was not raised before the first appellate court, as I have granted full opportunity to the Municipal Committee to produce the resolutions, if there are any. As already pointed out the only resolution produced before me is to the effect that the Municipal Committee sanctioned the expenditure for filing of appeal against the judgment and decree of the trial court. There is no specific decision of the Municipal Committee for filing an appeal against the judgment and decree of the trial court. But, from the above resolution, one may infer that a decision was taken and that is how the expenditure for filing an appeal has been sanctioned. This point as a matter of law need not be decided in this appeal as no resolution has been produced by the Municipal Committee authorising the Executive Officer to file appeal as the Executive Officer gave the authority to the advocate for filing the appeal. Therefore, the question which arises for consideration is whether an appeal which has been filed by an advocate on authorisation of the Executive Officer on behalf of the Municipal Committee without the resolution of the Municipal Committee authorising the Executive Officer to file the appeal is competent or not?

10. The counsel for the Plaintiff appellant has invited my attention to the Municipal Committee Ludhiana v. Surinder Kumar (supra), wherein, it was held by Single Judge of this Court that an Executive Officer has no power under Section 35 of the Punjab Municipal Act. No. ex post facto approval to the filing of the appeal could be granted beyond the period of limitation for filing the appeal, and that, a decision for filing the appeal has to be taken by the Municipal Committee itself and by none else. It was also held that resolution passed after the expiration of the period of Limitation for filing the appeal could not cure an irregularity and the appeal filed by the Municipality was held to be incompetent. This very decision was subject-matter of the Letters Patent Appeal and the Letters Patent Bench upheld the aforesaid decision in the case of The Municipal Committee Ludhiana (supra). The same is the ratio in the eases of Bawa Bhagwan Dass and Punjab Agricultural University (supra). On the ratio of the decision given in the aforesaid cases the counsel for the plaintiff appellant has argued that the failure to raise objection before the lower appellate Court is not fatal nor is the matter covered by Section 99 of the Code of Civil Procedure as the objection goes to the very root of the matter about the filing of a competent appeal before the lower appellate Court. Moreover he urges that no prejudice has been caused to the Municipal Committee as due opportunity could be granted by this Court and having been granted they could show that there was resolution or resolutions taking decision for filing of appeal and authorising Executive Officer to file the appeal or get it filed through an Advocate. According to him, since no resolution giving authority to the Executive Officer for filing appeal on behalf of the Municipal Committee has been produced before this Court and none was attached with the appeal before the lower appellate Court hence there was no proper appeal and this appeal deserves to be allowed and the judgment and decree of the trial Court deserve to be restored.

11. In reply to the argument of the counsel for the Municipal Committee about Section 99 of the Code of Civil Procedure, the counsel for the appellant has relied on Order 41, Rule 1 of the Code of Page: 532Civil Procedure that an appeal must be signed and presented by a duly authorised agent and if this is not done then in view of Pat Ram etc. v. Hukam Singh etc. 1971 Cur. L.J 294 it is only the memoranda of appeal which has to be signed by the appellant or his Advocate but the presentation of appeal has also to be either by the appellant or by his Advocate. The Advocate, according to the learned counsel could sign and present the appeal only if he had the authority from the Municipal Committee and since it is shown that the Advocate had no authority from the Municipal Committee and the Executive Officer had no authority on behalf of the Municipal Committee to further give authority to the Advocate, therefore, the signing and filing of appeal were both without authority and as such in the eyes of law there was no properly constituted appeal before the lower appellate Court which could be heard on merits.

12. After hearing the learned counsel for the parties, I am of the view that there is merit in the argument of the counsel for the plaintiff-appellant that there was no properly constituted appeal before the lower appellate court According to the decision of this court in the case of Bawa Bhagwan Dass (Supra), the Municipal Committee had to pass the resoultion giving authority to file appeal on its behalf against the judgment and decree of the trial Court. Local Bodies Corporate Bodies or Registered Bodies of Associations are Independent legal entitles and are capable of holding property and of suing and to be sued. Local Bodies liks the one in question, can only act through resolution and unless by a resolution it authorisies somebody to file an appeal on its behalf no appeal could be presented on behalf of the Municipal Committee. According to Pat Ram's case (Supra) the provisions of Order XLI Rule 1 of the Code of Civil Procedure, are manadatory and if there is no authority with an Advocate on behalf of the Municipal Committee, then in the eyes of law there would be no appeal on behalf of the Municipal Committee before the lower appellate Court. For the failure to raise the aforesaid objection before the lower appellate Court, the Municipal Committee could only urge that if such an objection had been raised before the lower appellate Court it would have shown that there was resolution authorising the Executive Officer to file the appeal himself or to appoint an Advocate for the Committee. This matter would not cause any prejudice to the Municipal Committee as the same opportunity has been granted to them in this Court and it is fairly admitted by the counsel for the Municipal Committee that no resolution was passed by the Municipal Committee authorising the Executive Officer to file appeal Hence no prejudice has been caused to the Municipal Committee in this regard.

13. As regards. Section 99 of the Code of Civil Procedure, the case in hand is not covered by the provisions of this Section. Section 99 refers to matter like mis-joinder of parties or cause 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. Proviso to this very section goes to show that if something substantial is lacking, then this Section cannot be brought in aid inasmuch as if a necessary party is not joined then the appellate Court can reverse the decision of the Court below on this technical obection. Here the objection is again Page: 533of vexatious nature where the very presentation of appeal is contrary to the provisions of Order XLI Rule 1 of the Code of Civil Procedure. If the presentation of the appeal is contrary to the provisions of law then it would be deemed that there is no appeal and the first appellate Court will have no jurisdiction to decide the appeal on merits. There fore, I am not convinced that because of Section 99 of the Code of Civil Procedure the objection should not have been allowed to be raised. The authorities which have been relied upon by Shri K.C Puri, under Section 99, Civil Procedure Code, are clearly distinguishable. He has not been able to show any authority to me where Section 99, Civil Procedure Code, was held applicable on the facts of the present case. So far as the plea of waiver is concerned, waiver is always a conscious act and no such conscious act has been shown which may persuade me to hold that such a plea was waived by the Plaintiff.

14. Consequently, I hold that there was no properly constituted appeal before the lower appellate Court which deserves to be dismissed as incompetent.

15. For the reasons recorded above, I allow this appeal, set aside the judgment and decree of the lower appellate Court and restore those of the trial Court. Since objection about the incompet???ncy of the appeal before the first appellate Court was raised in this Court, I leave the parties to bear their own costs.

R.M.S

Appeal allowed.

Garib Chand v. Municipal Committee

Structured Summary of the Opinion (G.C. Mital, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiff-Appellant's Arguments

Respondent Municipal Committee's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Garib Chand v. Municipal Committee

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