1. The plaintiff appellant in this case is a Limited Liability Company represented by its Secretary. The defendant failed to pay three calls on shares he held in the Company which fell due on the 6th of January 1917 and two later dates, and this suit was brought for the enforcement of payment of the three amounts so due. The suit was first filed on the 6th of January 1920 in the Court of Small Causes of Nagpur, the plaint being presented by Mr. Wazalwar, a pleader, who was armed with a proper vakalatnama. It was correctly held that the suit was not triable by that Court and the plaint was returned on the 20th February, 1920 for presentation to the proper Court, and it was presented on the same day by Mr. Wazalwar to the Court of the Munsiff. When a plaint is returned under order 7 Rule 10 of the CPC it is, I understand, the invariable practice in the Civil Courts of these Provinces not to return the vakalatnama under which it was originally filed. This, as I shall show later, is Wrong, but the practice was of course followed in this case, and Mr. Wazalwar had to obtain a second vakalatnama before he could present the plaint in the Court of the Munsiff. In this second vakalatnama, which is a printed form, no name was entered in the blank space left in the body of the document after the word Mr. for the name of the pleader, but it was signed by the Secretary of the plaintiff Company and also by the pleader under the printed word “Accepted”. All other details were also entered in the appropriate places and the one omission passed unnoticed at the time.

2. The defendant appeared and contested the claim on pleas mainly based on misunderstood and distorted technicalities, and the case was closed for judgment on the 8th May 1920. The learned Munsiff's judgment was on the merits entirely in favour of the plaintiff, but in writing it he came across Mr. Wazalwar's vakalatnama and noticed the defect in it. He also imagined there was nothing on the record to show that the plaint was returned by the Small Cause Court on the 20th of February, and later called on the plaintiff to file a certified copy of the entry in the Order Sheet of the Small Cause Court showing the date of the return: this was of course endorsed on the plaint itself as required by rule 10(2) of Order 7. That however is beside the present point. In regard to the defect in the vakalatnama the learned Mansiff called on the plaintiff for an explanation, and the Secretary of the Company put in a written application for permission to amend the vakalatnama by inserting Mr. Wazalwar's name in the blank space, backed by an affidavit that he had given the vakalatnama to Mr. Wazalwar intending thereby to appoint him his pleader and that the omission of his name from the body of the document was an accident due to haste, as the plaint was returned rather late in the afternoon of the 20th February and it had to be presented again before 5 p.m don the same day. There seems to have been little necessity of any affidavit to establish these matters. The learned Munsiff considered it necessary to hear the other side, and when, the defendant appeared he naturally pleaded there had been no proper presentation of the plaint on account of the defect in the vakalatnama and that no correction of that defect ought to be allowed at such a late stage.

3. In the judgment it is first found that the plaintiff is entitled on the merits to the decree he claims, and then held that amendment of the vakalatnama cannot be allowed on the authority of the rulings of this Court in Dhanoolpl v. Mt. Baji(1) and of the Allahabad High Court in Muhammad Ali Khan v. Jas Ram(2) that presentation of the plaint by the pleader under the defective vakalat-nama was no presentation in law. The suit was accordingly dismissed, with an unnecessary expression of the mistaken opinion that the claim for the first call would thereby be barred by time; section 14 of the Limitation Act would operate to save limitation if a fresh suit were filed even now. The same view of the matter of the presentation of the plaint was taken in the Court of the District Judge and the plaintiff's appeal was dismissed. He has not come here in second appeal.

4. There are so many points of view from which this decision can be seen to be wrong that it is not easy to state them all. The ruling of Stanyon, A.J.C in Dhanoolal v. Mt. Baji is easily distinguishable. In that case the pleader who presented the appeal had no written authority at all; he had merely added his signature to the acceptance of a vakalatnama given to another pleader, who apparently had the power to delegate his authority but had not done so in writing. My learned predecessor expressed his concurrence with the ruling of the Allahabad High Court in Muhammad Ali Khan v. Jas Ram but himself drew the distinction which I have pointed out when he said: “We do not find here, as was the case before the Allahabad Judges, a belated objection to a more inadvertent omission from the body of the vakalatnama of the name of a pleader whom the appellant desired to appoint. Here there was no power at all in favour of the pleader who presented the appeal, but his unauthorised and improper signature on a power given to another pleader and objection was taken at the first hearing, inter partes.”

5. The facts of the Allahabad case certainly do appear to be exactly those of the present case, but I feel bound, with all due respect, to dissent from the decision, on them. Mittra A.J.C has already expressed his dissent in the unreported case of Masum Bi v. Dongar Singh(3) in the following words. “A preliminary objection has been raised on behalf of the respondents that the appeal was not properly filed, inasmuch as the name of the pleader who filed it has been omitted in the body of the vakalatnama. In support of this reliance is placed upon Muhammad Ali Khan v. Jas Ram. The learned Judges of the Allahabad High Court follow an earlier ruling of that Court in Pokpal Singh v. Dambar Singh(4) I have not been able to trace that ruling, and as no reasons are given in the decision reported in the Indian Law Reports, I must decide the case upon a construction of the Code of Civil Procedure bearing on the point. Order 3, rule 4, requires the appointment of a pleader to be in writing signed by the person for whom the pleader is to appear and to act, and every such appointment when accepted by a pleader shall be filed in Court. Where a party delivers a duly signed vakalatnama to a pleader without putting his name in the body of the vakalatnama he impliedly authorises him to fill in the detail, and if, as in this case, the pleader simultaneously accepts the vakalatnama and signs his name in token of acceptance, the provisions of the law have been sufficiently complied with. The acceptance is in writing and was made in the presence of the party's agent who executed the power of attorney. The irregularity passed unnoticed in the office, otherwise the appellant's pleader had sufficient time to have the oversight rectified. I hold therefore that no objection can be successfully taken to the proper presentation of the appeal.”

6. I agree in this expression of opinion, and I might add that in the Allahabad case it was taken for granted? or rather as settled in the previous undiscoverable case, that the presentation was invalid, and the only matter really examined was whether it made any difference that the objection to its invalidity was taken at such a late stage in the case. The matter seems to me entirely one of the admissibility of evidence. There was certainly an authorisation in writing of a sort, but its terms are ambiguous and do not clearly indicate that Mr. Wazalwar was the pleader authorised by it. If further evidence can be received to clear up that ambiguity, then we have it in abundance and the document becomes clear and complete. If that evidence is to be excluded the document by itself cannot possibly be called an authorisation of Mr. Wazalwar or anybody else. The evidence is unaobtedly excluded in the first place by section 91 of the Evidence Act, but I am very distinctly of opinion that the ambiguity in the document is not a patent ambiguity such that section 93 of the Evidence Act would exclude evidence to explain it, but is a latent ambiguity which may be cleared up by extrinsic evidence under section 96 of the same Act. The meaning of the document as it stands is: “I give this vakalatnama to one of the pleaders practising in the Court of the Munsiff of Nagpur.” That makes it clear that the language was meant to apply to one only of several ascertained persons, and evidence may therefore be given of facts which show to which of these persons it was intended to apply.

7. The reasons for the opinion distinctly expressed in both the lower Courts that amendment of the vakalatnama could not possibly the allowed are hard to understand. The learned Additional District Judge says the mistake can be condoned, but he probably meant to offer sympathy and not condonation to the plaintiff, as he goes on to sag that to allow the pleader's name to be inserted after the case had been closed “would be an act not warranted by law or equity”. There might conceivable be some law forbidding such an act, though there is not, but equity and ordinary common sense very loudly demand that correction of the formal defect, if indeed it can seriously be called a defect at all should be allowed; not refused. The main basis of the refusal in both judgments appears to be the very sound but inapplicable principle stated in Dhanoolal v. Mt. Baji that “the provisions of Order 3 rule 4 of the CPC 1908 are clear and imperative and the Courts have no power to relax them.” There is no question, as seems to have been assumed, of allowing the plaintiff's pleader to appear and act for him without written authority. He had a written vakalatnama of a sort, and the only question was whether it was of the proper sort. The rule provides that the authorisation must be in writing, not that it must he in any particular form, nor that it must show the pleader's name in the main body of the document. As long as it is a writing which states that the party authorises the pleader to act for him and is signed by the party and the pleader, there is no relaxation of the provisions of the rule in accepting it. From the document in this case it certainly was not apparent at the first glance that Mr. Wazalwar was the pleader authorised by it, but there would be just as much doubt if an ignorant European plaintiff had given him a vakalatnama in which he entered his name as Mr. Budge L. Warre, and I feel confident that such a vakalatnama would always be accepted, probably without any question.

8. The observations of Piggott and Walsh JJ. in Raman Lalji v. Gokul Nathji(5) which are quoted in Jairam v. Motilal(6) as pertinent to that case are all equally applicable here, but only the last two sentences need be repeated. The learned Judges said: “It is not in the interests of the litigants themselves that a Court should be astute to defeat a claim, not on a consideration of the merits but on some technical point of procedure. There is no defect in procedure which anybody is capable of making which cannot as a rule be amended and compensated for by an order as to costs”. I would go further and say that the Courts are bound to be astute to prevent the defeat of a just claim in this way; the astuteness shown here was not only for the promotion of injustice but also mistaken and above all came spontaneously from the Court. In allowing an amendment to be made in exactly similar circumstances to those of the present cases in Chhayemannesna Bibi v. Basirar Rahman(7) the learned Judges of the Calcutta High Court remarked: “No comprehensive formula can be framed to define precisely the power of a Court to allow such amendment to be made, but this much may be laid down as the cardinal rule, that the allowance of amendments must, in every stage of the case, rest with the discretion of the Court, and that discretion must depend largely on the special circumstances of each case. If a limit to amendments may be laid down, it is this: that they must not be allowed to prejudice the substantial rights of the party in favour of whose opponent, the amendment is allowed, but observing due caution in that regard, the time and extent of each amendment are in the judicial discretion of the Court.”

9. I am prepared to go much further in this particular case and to say that even if the defect in the vakalatnama had been brought to the notice of the Court by the defendant, it would have been, practically outside its discretion to refuse to allow the amendment. In Kendall v. Hamilton(8) Lord Penzance observed that “procedure is the machinary of the law after all, the channel and means whereby law is administered and justice roached; it strangely departs from its proper office, when, in place of facilitating, it is permitted to obstruct and even extinguish legal rights, and is thus made to govern where it ought to subserve.” Section 151 of the CPC reminds us of the inherent and already existing power of a Court to prevent injustice and abuse of its own process. But to do that is much more than a matter within the power of the Court; it is its first duty, and indeed the chief, if not the only, object of its existence. Here the irregularity or defect in form or procedure, if any such term is applicable, has not made one atom of difference to anybody; nobody has been damaged or benefited by it in the slightest degree, and in throwing out the plaintiff's claim for such a reason is not allowing or rather perpetrating an injustice, and if letting the defendant succeed for such a reason is not helping him to abuse the process of the Court to his unrighteous advantage, I do not know what injustice or abuse of the process of the Court is.

10. Another of the reasons for which it must be held that Mr. Wazalwar had full and proper authority to act for the plaintiff and to present the plaint in the Court of the Munsiff, is that the vakalatnama which he presented with it in the Small Cause Court was still in force and empowered him to present the plaint in the. Munsiff's Court as well, though it was wrongly retained in the Small Cause Court when the plaint was returned to him. As far as I have been able to ascertain, the printed forms of vakalatnama used in these Provinces contain no express provision authorising the pleader to present the plaint in another Court if it should be returned under rule 7 of Order 10 by the Court to which it is originally presented, and I would call the attention of the Bar Association, as I did in another case decided earlier in the year, to the desirability of having some such express provision in the printed forms generally used. The provision is, in my opinion, not actually necessary, as I shall proceed to explain, but it might well be inserted pro majore cautela. The number of cases that are instituted on the last possible day, as this was, is astonishingly great, and when the plaint in such a case is returned to the pleader who filed it, if he has to get a fresh vakalatnama and his client does not happen to be present, the suit is bound to be time-barred. But it appears to me that the original-vakalatnama enures for the purposes of the suit in the Court in which the plaint is subsequently filed, under rule 4(2) of Order 3, even if it contains no express provision to that effect, and therefore ought in every case to be returned along with the plaint. That it must be returned if it does contain such a provision is of course beyond question, but I doubt whether a vakalatnama has ever been examined to see whether it did or did not. The express provision that a vakalatnama remained in force till all proceedings in the suit were ended first appeared in the Procedure Code of 1882. But the principle had been accepted long before that. In 1867 in Shah Mukhun Lal v. Sreekishen Singh(9) the Calcutta High Court allowed a pleader to appear without fresh authority in an application for leave to appeal to the Privy Council because he had filed a vakalatnama in the appeal to the High Court. Similarly in 1863 the pleader who had appeared in the original suit which was dismissed in default was held in Rajah Sutto Churn Ghossal, Bnhadoor v. Suroop thunder Doss(10) not to require a fresh vakalatnama to enable him to file an application for restoration. In 1892 in Raghunath Singh…(Petitioner); v. Raghubir Sahai…(Opposite Party).*(11) the Allahabad High Court allowed a pleader to put in an application for the restoration of an appeal that had been dismissed in default by virtue of the vakalatnama authorising him to conduct the appeal. Lastly the Bombay High Court in 1895 enunciated in Sadashiv Gonpatrao v. Vitthaldas Nanchand(12) the principle, that has always been accepted since then, that for the purposes with which we are now concerned execution proceedings are a part of the original suit. (S.A No. 530 of 1920, dated 24-4-22). I cannot see how the presentation of a plaint in another Court, after its return by the Court to which it was first presented by mistake is less a continuation of the original suit than the various proceedings mentioned in these cases.

11. Finally I may add thin. If the defect in the vakalatnama were an absolute technical bar to the success of the plaintiff's suit. I should still feel bound to carry out my duty of passing such orders as are necessary to present injustice. Those orders would be that the defendant should pay the whole costs of this litigation up to the present, and delivery of this judgment would be held up till the plaintiff had made all arrangements to file a fresh suit on the day of its delivery. Under section 14 of the Limitation Act that suit would be treated as filed on the day on which the original presentation was made in the Small Cause Court. It may be that on these findings the respondent is in strictness entitled to have the case remanded to the lower appellate Court for a decision of the appeal on the merits, which has not been given in that Court, though I do not think he is. But his learned pleader does not ask for any such remand, seeing that the decision is a foregone conclusion and the remand can only add to the costs he will have to pay. The decree of the lower appellate Court will be set aside and in lieu of it a decree will issue ordering the defendant to pay to the plaintiff Company the full amount claimed together with interest thereon at five per cent per annum from the date of the institution of the suit till the date of actual payment and also all the costs of the whole litigation.