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M/S Kesar Enterprises Limited v. Dy. Director Of Consolidation, Bareilly & Others - WRIT - B No. 75895 of 2005 [2006] RD-AH 560 (9 January 2006)


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Court No.40

Civil Misc. Writ Petition No.75895 of 2005

M/s. Kesar Enterprises Limited                                      ......Petitioner


Deputy Director of Consolidation, Bareilly & others         .....Respondents

Hon. S.N. Srivastava, J.

Heard learned counsel for the petitioner and learned counsel for Caveator.

Learned counsel for the petitioner urged that against an order passed by the Consolidation Officer, an appeal was preferred by 15 persons, but Vakalatnama was signed by only one person as such the appeal on behalf of other persons was not maintainable.  The Appellate authority has not taken into consideration this aspect while entertaining the Appeal.  

Considered arguments of learned counsel for the petitioner.

In view of the law laid down by the Apex Court in the judgment rendered in Civil Appeal No. 6701 of 2005 (Arising out of SLP(C) No. 22578 of 2002), Udav Shanker Trivar vs. Ram Kalewar Prasad Singh and another decided on 10.11.2005, the appellants before the Appellate Authority (Assistant Settlement Officer, Consolidation, Bareilly) are entitled to have an opportunity to get the defect removed.  Paragraph-15 of the judgment of the Apex Court is being reproduced below:-

"15. It is, thus, now well-settled that any defect in signing the memorandum of appeal or any defect in the authority of the person signing the memorandum of appeal, or the omission to file the Vakalatnama executed by the appellant, along with the appeal, will not invalidate the memorandum of the appeal, if such omission or defect is not deliberate and the signing of the Appeal memorandum or the presentation thereof before the appellate court was with the knowledge and authority of the appellant.  Such omission or defect being one relatable to procedure, it can subsequently be corrected.  It is the duty of the Office to verify whether the memorandum of appeal was signed by the appellant or his authorised agent or pleader holding appropriate Vakalatnama.  If the Office does not point out such defect and the appeal is accepted and proceeded with, it cannot be rejected at the hearing of the appeal merely by reason of such defect, without giving an opportunity to the appellant to rectify it.  The requirement that the appeal should be signed by the appellant or his pleader (duly authorised by a Vakalatnama executed by the appellant) is, no doubt, mandatory.  But it does not mean that non-compliance should result in automatic rejection of the appeal without an opportunity to the appellant to rectify the defect.  If and when the defect is noticed or pointed out, the court should, either on an application by the appellant or suo motu, permit the appellant to rectify the defect by either signing the memorandum of appeal or by furnishing the Vakalatnama.  It should also be kept in view that if the pleader signing the memorandum of appeal has appeared for the party in the trial court, then he need not present a fresh Vakalatnama along with the memorandum of appeal, as the Vakalatnama in his favour filed in the trial court will be sufficient authority to sign and present the memorandum of appeal having regard to Rule 4(2) of Order 3 CPC, read with Explanation [c] thereto. In such an event, a mere memo referring to the authority given to him in trial court may be sufficient.  However, filing a fresh Vakalatnama with the memo of appeal will always be convenient to facilitate the processing of the appeal by the office."

Sri G.S.D. Misra, learned counsel for Caveator, undertakes to remove the defect in the appeal and prays for time for the purpose.

In view of he law laid down by the Apex court, this Court is of the view that that some reasonable time may be granted to the appellants in the appeal pending before the Appellate authority to remove the defect.

Accordingly, appellants in the Appeal pending before the Appellate authority are directed to remove the defect in the Appeal within three weeks' from the date of production of a certified copy of this order.  In case defect in the appeal is removed within three weeks, the appeal shall be heard and decided in accordance with law within three months thereafter.

In case defect is not removed within the stipulated time, the appellate authority shall decide maintainability of the appeal in accordance with law first.

With above directions, writ petition is disposed of.

Certified copy of this order be issued to learned counsel for the parties within 48 hours on payment of usual charges.



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