# Smt. Saeeda Ashraf & Anr v. V A.D.J., Faizabad & Ors

- **Citation:** (2021) 10 ILRA 935
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-23
- **Case number:** Misc. Single No. 72 of 1993
- **Bench:** Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-saeeda-ashraf-anr-v-v-a-d-j-faizabad-ors-46432
- **Pages:** 5

## Headnote

Civil Law - Practice & Procedure -
Vakalatnama
-
Vakalatnama
filed
alongwith
recall
application
signed
only by the plaintiffs and not by
Advocate - Revisional court held that
the
Advocate
was
not
properly
appointed and it is an error which
cannot be corrected and, therefore, the
recall application was liable to be
rejected- Held - Mere defect in filing of
power by not signing the same by
counsel is not a defect which cannot
be cured - Order passed by revisional
court set aside

Allowed. (E-5)

List of Cases cited:

## Text

10 All. Smt. Saeeda Ashraf & Anr. Vs. V A.D.J., Faizabad & Ors.
935
judgments of three Judge Benches referred
to hereinabove and cannot be treated as
good law. This part of the judgment is also
against the very concept of reinstatement of
an employee/workman."

12. The Hon'ble Supreme Court, in the
case of Raj Kumar Vs. Director of Education
and Others (Supra), has held that the
respondents have been unable to produce any
evidence to show that he was gainfully
employed during that period and therefore he is
entitled to back wages and other consequential
benefits in view of the law laid down by this
Court in the case of Deepali Gundu Surwase
Vs. Kranti Junior Adhyapak Mahavidyalaya
(D.Ed) and Another; (2013) 10 SCC 324.

13. The Hon'ble Supreme Court, in the
case of Marwari Balika Vidyalaya Vs. Asha
Srivastava and Others (Supra), has held that
the manner in which termination had been
made was clearly arbitrary and the order was
illegal and void and thus back wages should
follow.

14. The Hon'ble Supreme Court in the
case of H.V.P.N. Ltd and Others Versus Bal
Govind (Supra), relied by the petitioners, has
denied the back wages because the respondent
therein was out of service on account of his
involvement in a criminal case as warranted by
the service rules and the request in the notice
sent by the respondent was only for the salary
of the month of August, 1992. This Court also
in the case of Smt. Kewlapati Versus U.P.
Lok Sewa Adhikaran, Indira Bhawan Lko
and Others (Supra), relied by learned counsel
for the petitioners denied the back wages
because the punishment order and the appellate
order were set-aside by the tribunal on the
ground that the inquiry conducted by the
Inquiry Officer was in utter violence of
principles of natural justice i.e. on technical
ground. So as per the settled proposition of law
the matter should have been remanded to the
Punishing Authority but the Tribunal had
reinstated the petitioner with all consequential
service benefits denying the back wages.
Therefore these case laws are not applicable on
the facts and circumstances of the present case
and of no assistance to the petitioners.

15. In view of above, this Court is of the
considered opinion that there is no illegality or
error in the impugned award and allowing all
consequential benefits because the enquiry was
held without any basis and complaint and the
charges could not be proved by the petitioners
in the domestic enquiry as well as before the
tribunal on opportunity given. Therefore the
opposite party no.1 was forced not to work due
to illegal and arbitrary action of the petitioners
with some ulterior motive, while he had not
denied to work. The petitioners also could not
prove that the opposite party no.1 was gainfully
employed anywhere after removal. Therefore
the writ petition has been filed on misconceived
ground and lacks merit and it is liable to be
dismissed.

16. The writ petition is dismissed. No
order as to costs.
----------

(2021)10ILR A935
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.10.2021

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Misc. Single No. 72 of 1993

Smt. Saeeda Ashraf & Anr. ...Petitioners
Versus
V A.D.J., Faizabad & Ors. ...Respondents

Counsel for the Petitioners:
M.A. Siddiqui
936 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
C.S.C., Abhinav N. Trivedi, G.P. Tripathi, S.
Mirza

Civil Law - Practice & Procedure -
Vakalatnama
-
Vakalatnama
filed
alongwith
recall
application
signed
only by the plaintiffs and not by
Advocate - Revisional court held that
the
Advocate
was
not
properly
appointed and it is an error which
cannot be corrected and, therefore, the
recall application was liable to be
rejected- Held - Mere defect in filing of
power by not signing the same by
counsel is not a defect which cannot
be cured - Order passed by revisional
court set aside

Allowed. (E-5)

List of Cases cited:

1. Chheeta vs Musammat Maiko & ors. AIR
1931 Allahabad 767

2. Official Receiver, Aligarh Vs Hiralal & ors.
AIR 1935 Allahabad 727

3. Mahela Salnarayanan Vs Bamnoori Bank
Someshya, AIR 1957 Andhra Pradesh 172,

4. Hira Lal and Gendalal vs Bhagirathi Ram
Chander & Com., AIR 1946 Bombay 174

5. Kanhaiyalal Vs Panchayati Akhada by
Dharamdas 1949 ALJ 105

6. Uday Shankar Triyar Vs Ram Kalewar
Prasad Singh 2006 (1) SCC 75

7. Gauri Shanker & ors. Vs 3rd ADJ, Balia &
ors. 2010 (6) ALJ 270

(Delivered by Hon'ble Vivek Chaudhary, J.)

1. Present writ petition is filed by the
petitioners challenging the order dated
13.11.1992 passed by the Vth Additional
District Judge, Faizabad whereby the
learned

2. Facts of the case are that in absence
of the plaintiffs, the suit was dismissed on
30.5.1984. A restoration application was
filed, which was numbered as Misc. Case
No.30 of 1984. The same was also
dismissed in default on 19.1.1985. On
21.1.1985, another recall application for
recalling the order dated 19.1.1985 was
filed which was numbered as Misc. Case
No.12 of 1985. By an order dated 8.5.1987,
the court below allowed the Misc. Case
No.12 of 1985 and recalled the order dated
19.1.1985. Against the said order, a
revision was filed. Objection raised in the
revision was that Misc. Case No.12 of 1985
was not filed by the plaintiffs, but by Sri
Mohd Haneef, Advocate, though he was
not
an
advocate
for
the
plaintiffs.
Therefore, the recall application was not
filed properly. The ground taken was that
Sri Mohd. Haneef, Advocate had not
signed the Vakalatnama for the plaintiffs.
The said revision was opposed by the
plaintiffs. The revisionists before the
revisional court had relied upon the
judgments reported in AIR 1931 Allahabad
767, Chheeta vs Musammat Maiko and
others and AIR 1935 Allahabad 727
Official Receiver, Aligarh versus Hiralal
and others. The respondents in revision had
relied upon the judgments reported in AIR
1957
Andhra
Pradesh
172,
Mahela
Salnarayanan
vs
Bamnoori
Bank
Someshya, AIR 1946 Bombay 174 Hira Lal
and Gendalal versus Bhagirathi Ram
Chander and Company, and 1949 ALJ 105
Kanhaiyalal versus Panchayati Akhada by
Dharamdas.

3.

Considering
the
facts
and
circumstances of the case, the court below
held that since the Vakalatnama was signed
only by the plaintiffs and not by Sri Mohd.
Haneef, Advocate, therefore, Sri Mohd.
Haneef,
Advocate
was
not
properly
10 All. Smt. Saeeda Ashraf & Anr. Vs. V A.D.J., Faizabad & Ors.
937
appointed as a lawyer and thus, it is an
error which cannot be corrected and,
therefore, the application was liable to be
rejected. Against the said order, present
writ petition is filed.

4. Learned counsel for the petitioners,
in support of his submissions, has placed
reliance upon a judgment of the Supreme
Court in the case of Uday Shankar Triyar
versus Ram Kalewar Prasad Singh 2006
(1) SCC 75. In the said case, against
eviction order, two persons, namely, A.N.
Singh
and
DCC
(District
Congress
Committee) filed Eviction Appeal No.4 of
1998. During pendency of appeal, first
appellant A.N. Singh died and his legal
heirs did not come on record. However, one
Ram Kalewar Prasad Singh claiming to be
the working President of DCC filed an
application to delete the name of the first
appellant and to show DCC as sole
appellant.
The
said
application
for
substitution was opposed by the landlord.
On
hearing
the
said
substitution
application, the learned Additional District
Judge by order dated 27.4.2002 dismissed
the appeal. He found that even though A.N.
Singh and DCC were arrayed as appellant
nos.1 and 2 respectively, Vakalatnama
accompanying the memorandum of appeal
was signed only by A.N. Singh and no
Vakalatnama was filed on behalf of DCC.
Therefore, the court held that appeal on
behalf of appellant no.2-DCC is nullity in
the eyes of law and is liable to be dismissed
and is dismissed, as no legal heirs have
come by substitution in place of appellant
no.1. The said order was challenged before
the high court and the high court had taken
a different view and had found the appeal
maintainable. Thereafter, the matter went to
Supreme Court and the Supreme Court in
the said facts and circumstances of the
case, held as follows:

"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 appeal, if such
omission or defect is not deliberate and the
signing of the memorandum of appeal 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, 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 giving 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
938 INDIAN LAW REPORTS ALLAHABAD SERIES
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 the 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.

16. ............................

17.
Non-compliance
with
any
procedural requirement relating to a pleading,
memorandum of appeal or application or
petition for relief should not entail automatic
dismissal or rejection, unless the relevant
statute or rule so mandates. Procedural defects
and irregularities which are curable should not
be allowed to defeat substantive rights or to
cause injustice. Procedure, a handmaiden to
justice, should never be made a tool to deny
justice or perpetuate injustice, by any
oppressive or punitive use. The well-recognised
exceptions to this principle are:

(i) where the statute prescribing the
procedure, also prescribes specifically the
consequence of non-compliance;

(ii) where the procedural defect is
not rectified, even after it is pointed out and due
opportunity is given for rectifying it;

(iii) where the non-compliance or
violation is proved to be deliberate or
mischievous;

(iv) where the rectification of defect
would affect the case on merits or will affect the
jurisdiction of the court;

(v) in case of memorandum of
appeal, there is complete absence of
authority and the appeal is presented
without
the
knowledge,
consent
and
authority of the appellant.

18. .................

19. .................

20. There is yet another reason to
hold that the appeal by DCC against the
eviction decree was validly filed. DCC was
represented by Shri Bindeshwar Prasad
Singh and his colleagues in the trial court.
The same counsel filed the appeal. The
vakalatnama granted by DCC in favour of
the said counsel in the trial court was
sufficient authorisation to the said counsel
to file the appeal having regard to Order 3
Rule 4(2) CPC read with Explanation (c),
even without a separate vakalatnama for
the appeal."

5. Further, reliance is placed by
learned counsel for the petitioners upon a
judgment of this Court in the case of Gauri
Shanker and others versus 3rd ADJ, Balia
and others 2010 (6) ALJ 270. In the said
case this Court has relied upon the
judgment of the Supreme Court in the case
of Uday Shankar Triyar (supra) and held
as under:

"15. So far as the objections of
the learned Counsel for the respondent
with regard to the maintainability of
restoration application in derogation of
Order III, Rule 4(1) of C.P.C. is concerned,
it is well settled that the procedural law are
not always mandatory and sometime it is
directory and curative in nature in view of
the decisions of the Apex Court in Kailash
v. Nanhku [2005 (29) AIC 95 (SC) : 2005
(4) SCC 480.] , Rani Kusum (Smt.) v.
Kanchan Devi (Smt.) [2005 (99) RD 616
(SC) : 2005 (33) AIC 85 (SC).] , Dove
10 All. Trilochan Kaur Vs. Manpreet Kaur & Anr.
939
Investments (P) Ltd. v. Gujrat Industrial
Investment Corporation Ltd. [2006 (39)
AIC 102 (SC) : 2006 (2) SCC 619.] .

16. Here in this case it cannot be
disputed that for appearing in the Court of
law on behalf of a party proper written
authorisation is necessary but under
certain circumstances Counsel can put in
appearance on oral instructions also
provided he is authorised for the said
purpose and at later stage bring on record
a signed authorization i.e., vakalatnama
executed in his/her favour.

17. Learned Counsel for the
respondent
may
be
right
in
his
submissions that no one should be
heard for a party unless he is duly
authorised through signed vakalatnama
to appear before the Court. However in
this
case
although
the
Counsel
appeared but on oral instruction of the
applicant
and
not
through
signed
vakalatnama,
now
the
signed
vakalatname has been executed in
favour of Vivek Kumar Singh and filed
in the Court therefore in my view the
defect if any stood cured."

6.

Learned
counsel
for
the
respondents has strongly relied upon the
case laws referred to by the revisional
court and has opposed this petition.

7.

I
have
considered
the
submissions made by learned counsel
for the parties and perused the record.

8. The Supreme Court as well as
this Court by its judgment passed in the
year 2006 and 2010 have specifically
held that mere defect in filing of power
by not signing the same by counsel is
not a defect which cannot be cured.

9. In view of the law settled by the
Supreme Court in the case of Uday
Shankar Triyar (supra) and this Court in
the case of Gauri Shanker (supra), the
view taken by the revisional court is no
more sustainable in law.

10. In view thereof, the judgment and
order dated 13.11.1992 passed by the
revisional court is set aside. The order of
the court below dated 8.5.1987, by which
restoration in Misc Case No.12 of 1985
was allowed, is maintained. Since it might
be one of the oldest suits before the court
concerned, it shall proceed with the same
expeditiously,
without
granting
any
unnecessary adjournments including on the
ground of strike of lawyers.

11. With the aforesaid, present writ
petition stands allowed.
----------
(2021)10ILR A939
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.10.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Misc. Single No. 4177 of 2012

Trilochan Kaur ...Petitioner
Versus
Manpreet Kaur & Anr. ...Respondents

Counsel for the Petitioner:
Shri Niteesh Kumar

Counsel for the Respondents:
Shri SN. Tilhari, Additional Government
Advocate, Sri Sumit K. Srivastava

A. Criminal Law - Protection of Women
From
Domestic
Violence
Act,2005
-
Section
12
-
Limitation
for
moving