# Bal Mukund Prasad and others Revisionists v. Mathura Prasad

- **Citation:** (2002) 2 ILRA 586
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-08-01
- **Case number:** Civil Misc. Writ Petition No. 97 of 1987
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bal-mukund-prasad-and-others-revisionists-v-mathura-prasad-39862
- **Pages:** 3

## Headnote

Code of Civil Procedure - Section 115 -
appeal filed without vakalatnama - court
below simply allowed 7 days time to
remove
the
irregularity
-
held
-
committed no illegalities - rather than
has done substantial justice instead of
denoy of technicalities..

Held - para 12 and 13

In my opinion the court below has
committed no irregularity. The court
should
not
decide
the
cases
on
technalites but decide the case on merits
and do substantial justice. I am fortified
by the judgement of the The Hon'ble
Supreme Courtin this regard in Re-AIR
1956
SC-140
Pratap
Singh
Vs.
Sri
Krishna Gupta.

In view of the above position of law this
revision has no force and it has been
filed on hyper technicality and requires
no interference by this Court under
Section
115
of
the
Code
of
Civil
Procedure as the issue decided neither
affects the jurisdiction of the Court
below
nor
the
court
below
has
committed any material irregularity.
Case Law Discussed:
1994 AWR 217
1972 ALJ 9
AIR 1966 SC 1119
AIR 1956 SC 140 Relieded

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
586
consideration. If the petitioner has any
other complaint, it would be open for him
to bring it into the knowledge of the
Director of the Education for redressal in
the public interest, particularly in the
interest of students.

8. In light of above, no interference
is warranted under Article-226 of the
Constitution of India.

9. The writ petitioner is dismissed.
---------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.08.2002

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 97 of 1987

Bal Mukund Prasad and others
 ...Revisionists
Versus
Mathura Prasad

 ...Respondent

Counsel for the Petitioner:
Sri Tarun Verma

Counsel for the Respondents:
Sri K.C. Srivastava

Code of Civil Procedure - Section 115 -
appeal filed without vakalatnama - court
below simply allowed 7 days time to
remove
the
irregularity
-
held
-
committed no illegalities - rather than
has done substantial justice instead of
denoy of technicalities..

Held - para 12 and 13

In my opinion the court below has
committed no irregularity. The court
should
not
decide
the
cases
on
technalites but decide the case on merits
and do substantial justice. I am fortified
by the judgement of the The Hon'ble
Supreme Courtin this regard in Re-AIR
1956
SC-140
Pratap
Singh
Vs.
Sri
Krishna Gupta.

In view of the above position of law this
revision has no force and it has been
filed on hyper technicality and requires
no interference by this Court under
Section
115
of
the
Code
of
Civil
Procedure as the issue decided neither
affects the jurisdiction of the Court
below
nor
the
court
below
has
committed any material irregularity.
Case Law Discussed:
1994 AWR 217
1972 ALJ 9
AIR 1966 SC 1119
AIR 1956 SC 140 Relieded

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard learned counsel for the
parties and perused the record.

2. This revision is directed against
the judgment and order dated 05.12.1986
passed by the Civil Judge-I, Gorakhpur in
suit no. 64 of 1985 Mathura Prasad Vs.
Smt. Rati Devi and others. By the
aforesaid judgment and order dated
05.12.1986 the Civil Judge-I, Gorakhpur
has decided issue no. 8 against the
defendant-revisionist.

3. The brief facts giving rise to this
revision are that initially the suit was filed
in the Court of Munsif. The valuation of
the suit was excessive; hence the plaint
was taken back for filing the same before
the Civil Judge. At the time of filing of
the suit defendant Mathura Prasad was
aged about 19 years and during the
pendency of the suit he has attained the
majority. In this regard an amendment
application was moved on 31st March,
1980. An objection was raised that after
attaining the majority the plaint should
not be signed by his guardian while
http://www.allahabadhighcourt.nic.in
2 All] Bal Mukund Prasad and others V. Mathura Prasad
587
presenting the plaint before the Court of
Civil Judge. It is alleged that since the
defendant has not signed the plaint the
suit has become illegal.

4. The findings of the trail Court are
assailed on the ground that the trail Court
has acted illegally in deciding issue no. 8
in favour of the plaintiff and has exercised
his jurisdiction with material irregularity
by holding that lack of proper verification
and signing of pleading is merely a
mistake and can be subsequently rectified.

5. It has been submitted by the
respondents that the decision on issue no.
8 does not come within the ambit of
expression 'any case which has been
decided' and as such, the revision is not
maintainable against the order deciding an
issue.

6. It is not in dispute that the suit
was filed by the defendant Mathura
Prasad, the minor and it was signed by his
guardian and the same was maintainable
and was not defective when it was filed at
the relevant time.

7. In the impugned order the Civil
Judge has held that after attaining the
majority defendant Mathura Prasad has
committed irregularity by not signing the
plaint and this irregularity can be rectified
in law.

8. In Kanhaiya Lal Vs. Panchyati
Slahara (Akhara) 1994 AWR 217, it
was held that the act of defective
presentation did not amount to any
illegality and that it was a mere
irregularity. It was held that in such
circumstances opportunity should be
offered to the applicant to have filed a
Vakalatnamd to remove the defect in
presentation of the appeal.

9. In State Vs Raja Singh and
others, 1972 , A.L.J. page-9 (Revenue
side) it has been held that:

"Under Order III, Rule 4 C.P.C. no
pleader can act for any person unless he is
appointed for the purpose by a document
in writing signed by such person or by his
recognized agent or by some other person
duly
authorized
to
make
such
appointment.
This
Rule
requires
a
Vakalatnama and for Government pleader
Order XXVII. Rule 9 prescribes an
alternative in the shape of a memo of
appearance signed by him.

Where the D.G.C. filed an appeal on
behalf of the State Government but did
not file his Vakalatnama or a memo of
appearance, such defective presentation
does not amount to any illegality. The
Court should afford an opportunity to file
a memo of appearance as soon as it
becomes convinced of the defect."

10. In AIR 1966 Shashtri Yasan
Purush Das Ji Vs. Mool Das Pundar
Das Vaish, page-1119 it has been held
that:

"In this case, the Vakalatnama had
evidently been signed by respondent no. 1
in favour of the Government Pleader in
time and so, the High Court was plainly
right in allowing the Government Pleader
to sign the memo of appeal and the
Vakalatnama in order to remove the
irregularity committed in the presentation
of the appeal. We do not think that Mr.
Desai is justified in contending that the
High Court was in error in overruling the
objection raised by the appellants before it
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
588
that the appeal preferred by respondent
no. 1 was incompetent."

11. It is against this order dated
06.12.1986 the present revision has been
filed by which the Court below has held
that if the appeal has been filed without
Vakalatnama it is only a mistake, which
can be rectified and has granted 7 days'
time
to
the
plaintiff-opposite
party
Mathura Prasad to remove the aforesaid
irregularity.

12. In my opinion, the Court below
has committed no irregularity. The Court
should
not
decide
the
cases
on
technicalities but decide the case on
merits and do substantial justice. I am
fortified by the judgment of the The
Hon'ble Supreme Court in this regard in
Re-AIR 1956 SC-140 Pratap Singh Vs.
Sri Krishna Gupta.

13. In view of the above position of
law this revision has no force and it has
been filed on hyper technicality and
requires no interference by this Court
under Section 115 of the Code of Civil
Procedure as the issue decided neither
affects the jurisdiction of the Court below
nor the court below has committed any
material irregularity.

14. Therefore, the revision is
dismissed.

15. Since the proceedings in O.S.
No. 64 of 1985 are stayed since 1987, it is
directed that the Court below may decide
the suit expeditiously preferably within 6
months from the date of production of a
certified copy of this order.

16. Let a copy of this judgment be
sent to the Court below for restart of the
hearing without any further dealy.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2002

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 37210 of 1997

Smt. Sneh Sharma

...Petitioner
Versus
Regional Assistant Director of Education
(Basic) , Agra and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Bhushan
Sri H.N. Pandey
Sri Ajay Dubey
Kamini Dubey
C.S.C.

Counsel for the Respondents:
Sri Pramod Kumar Sharma
S.C.

U.P. Junior High School (Payment of
Salaries
of
Teachers
and
other
employees)
Act
1978-Section
18Transfer of Assistant Teacher from one
aided institution duly approved by the
competent
authority-can
not
be
cancelled without affording opportunity,
without any reason.

Held-Para 7.

A perusal of the order of cancellation of
the transfer since does not disclose any
reason nor it has been disclosed in the
counter affidavit that any fraud or
misrepresentation has been made either
by the institution concerned or by the
petitioner and there being no provision
under rule 18 as argued by the learned
counsel for the petitioner. I see that the
order dated 01.11.1997 suffers from