J.D. Jain, J.
(1) This second appeal is directed against judgment and decree dated 4th January, 1980 of an Additional District Judge, Delhi dismissing the appeal filed by Sh. Hans Raj, deceased, predecessor-in-interest of the appellants against judgment and decree dated 13th July, 1978 of a Subordinate Judge 1st class whereby the suit of the plaintiff respondent Shri Anand Parkash for possession of the premises in suit bad been decreed with costs. A notice was issued to the respondent to show cause as to why the appeal be not admitted and in response to the said notice the respondent has raised a preliminary objection to the effect that this appeal is barred by time. The facts on the basis of which the said objection is sought to be raised are as under: The appeal was originally filed by the appellants through their counsel on 1st May, 1980. On security and examination thereof the office pointed out the following defects :
(I)certified copy of the grounds of appeal filed before the lower appellate court should be duly stamped ; (ii) English translation of the affidavit in Hindi should be certified as true translation by the counsel ; and (iii) power of attorney should be signed by the appellants a3 to 5.
(2) The appeal was accordingly returned by the Deputy Registrar of this court to counsel for the appellants on 3rd May, 1980 with the direction that the same be refiled within a week. It would, however, appear that counsel for the appellants did not comply with the said direction within the prescribed period and be refiled the appeal after removing the objections as late as 4th February, 1981 i.e. after the lapse of nearly nine months. However, he recorded the following cryptic note while refiling :
'OBJECTIONSremoved. Refiled. Delay in filing is regretted and the same has occasioned as the papers had got mixed up'.
(3) In his reply to the show-cause notice, the respondent has pointed out that the appeal had not been refiled deliberately and it was only after the respondent-Decree Holder had taken out execution and sought attachment of the goods of the appellants that the latter thought it fit to refile the appeal. This, according to him, not only rendered the appeal barred by time but also amounted to an abuse of the process of the court.
(4) The appellants have not filed any reply or affidavit etc. to explain the inordinate delay in refiling the appeal. So, the only Explanationn available on the record is the cryptic note made by the learned counsel for the appellants which has been extracted above. Obviously the note is too vague and laconic and it does not throw any light whatsoever as to what really happened which resulted in the extra ordinary delay in refiling of the appeal. The court is simply left guessing on this aspect of the matter. No prayer for condensation of delay has even been made.
(5) Finding himself in this predicament the learned counsel for the appellants has made no endeavor to justify the delay as such. On the contrary he has canvassed with considerable vigour that the appeal was perfectly in order when filed originally and there was no non-compliance with the relevant provisions of law. So according to him, the objections raised by the Registry were not tenable at law and as such the order of the Deputy Registrar returning the appeal to the appellants is not sustainable. In other words, the appeal having been regularly filed must be deemed to have been on the board of the court from the very inception and the question of any delay involving condensation of delay for the purpose of limitation does not arise. His contention is two fold. Firstly there is no requirement of law that the Vakalatnama should be filed Along with the appeal much less that it should be signed by all the appellants. Since the judgment of the lower appellate court proceeds on a ground common to all the appellants, any one or more of them could appeal from the whole decree in view of Rule 4 order Xli Code of Civil Procedure (hereinafter referred to as 'the code'). As the power of attorney was duly signed by appellant No. I Smt. Parvati Devi, widow of late Pt. Hans Raj for herself and on behalf of her minor son Tarun Kumar, appellant No. 2 the appeal was complete in all respect and should have been entertained. Since, the preliminary objection railed in this appeal is of common occurrence. I propose to deal with the question at some length.
(6) Order Xli Rule 1(1) of the Code requires that every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the court or to such officer as it appoints in this behalf. The Memorandum has to be accompanied by a copy of the decree, appealed from and of the judgment on which it is founded, unless the appellate court dispenses with the production of the judgment. If these conditions are fulfillled the appeal is preferred validly so far as the requirements of the Code are concerned, on the date of on which it is presented. However, (r) memorandum which does not satisfy these requirements, may under Rule 3(1) be rejected or returned to the appellant for the purpose of being amended within a time to be fixed by the court or be amended then and there.
(7) Rules and Orders of the Punjab High Court relating to proceedings in the High Court which were made under the authority of the Constitution of India, the Letters Patent and the Acts of Parliament (as printed on the very first page of Volume V, Rules & Orders of the Punjab High Court) have been adopted by the High Court of Delhi. Chapter I of the aforesaid volume which is entitled 'Judicial Business' deals by part 'A' with the presentation and reception of appeals, petitions and applications for review and revision. Rule 2(a) thereof, inter alia, provides, that every memorandum of appeal and every application, written statement, affidavit annexure to writ petition etc. shall be in the English language and shall be typed in double spacing on one side of the paper only on water marked plain paper unless a printed form is prescribed for the purpose by the High Court. Clause (b) of Rule 2 further states that every memorandum of appeal shall be accompanied by copies of the decree and judgment as prescribed by order Xli Rule 1 of the Code. In the Case of second appeals, in addition to the documents prescribed by Order Xli Rule I of the Code memorandum shall be accompanied by a copy of the judgment of the court of first instance unless the appellate Court dispenses therewith. Rule 5(1) empowers the Deputy Registrar to return for amendment and refiling within a time not exceeding ten days at a time and 40 days in the aggregate to be fixed by him in memorandum of appeal for the reasons specified in Order Xli Rule 3 of the code. Sub-rule (2) thereof provides that if the memorandum of appeal is not amended within the time allowed by the Deputy Registrar under Sub-rule (1) it shall be listed for order before the Court.
(8) The argument sought to be put forth by the learned counsel for the appellants precisely is that there being no non-compliance with the provisions of Rule 1 of Order Xli the question of the rejection or amendment of the memorandum of appeal did not arise. In other words, the return of the appeal itself was not valid and the delay in refiling the same should be ignored.
(9) Ul is, no doubt, true that there is no requirement of law that the grounds of appeal before the first appellate Court should be filed Along with the second appeal Presumably this requirement is based on the concept that the grounds of appeal form part of the judgment and decree of the first Appellate Court. All the same, having regard to the trivial nature of the lapse, the defect can certainly be ignored especially when it has been removed. The second objection with regard to the non-certification of the English translation of the Hindi affidavit by the counsel for the appellants too does. not spring from the requirement of Rule 1 Order Xli of the Code. However, it is based on the requirement of Rule 2(a) of the Punjab High Court Rules and Order because it specifically lays down that every application, written statement, affidavit and annexures to the writ petition etc. shall be in English language. Since the affidavit sworn by the appellant was in Hindi, it was obligatory on the part of the appellants to file an English translation thereof and as a necessary corollary it would follow that the translation must be certified to be correct by the appellants' counsel. However, this objection too being of a trivial nature much notice cannot be taken thereof especially, when the defect has since been removed. The position with regard to the third objection is however, different. The appeal as constituted purports to have been filed by all the five appellants. So, even though appellant No. 1 could alone file the appeal by virtue of Order Xli Rule 4 of the Code as the judgment of the first appellate Court proceeded on a ground Common to all the appellants but the fact remains that it was not filed by her alone. While scrutinising whether the appeal was complete in all respects or not the office had to take the memorandum of appeal as il was presented by counsel for the appellants and the question whether one of them was competent to file the appeal or not did not arise at that stage. So, the mere fact that the Vakalatnama had been signed by appellant No. 1 for herself and on behalf of her minor son would not imply that the counsel who presented the memorandum of appeal on behalf of all the appellants was duly authorised to do so by all of them. Hence, the objection raised by the office in this behalf was perfectly justified
(10) The submission of the learned counsel for the appellants is. that Rule I of Order Xli no where lays down that the mamorandum of appeal must be accompanied bya duly signed power of attorney in case it is. signed by the lawyer of the appellant and not by the appellant himself. In any case, according to him, the appeal was perfectly valid and competent so far as appellants I & 2 arc concerned and as such the same could not be returned for refiling. No doubt. Rule 1 Order Xli does not in terms say that the memorandum of appeal shall be accompanied by a duly signed power of attorney in favor of the counsel who has signed the memorandum of appeal on behalf of the appellant, but this requirement is implicit in the very language of the said Rule. Signing by the pleader of the appellant implies that the pleader of the appellant has proper authority to act on his behalf. Surely, it cannot be the intention of the rule that a lawyer who docs not hold any authority from his client would be competent to sign on his behalf. It may be that in a giving case the lawyer inadvertently omits. to file the power of attorney but so long as he holds the authority from his client at the time of filing the appeal it may well be said that the appeal when filed was competent. However, if the lawyer does not hold any power of attorney at the time of signing the memorandum of appeal and presenting the appeal it cannot be held by any stretch of reasoning that he had the requisite authority to act on behalf of the appellant. There can, of course, be cases where omission on the part of litigant to sign the power of attorney may be attributed to oversight or inadvertence but in such a situation the lawyer or the party concerned must say so. Rule 4 of Order Iii of the Code specifically lays down that no pleader shall act for any person in any court unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent. So, the source of authority for the lawyer to act on behalf of his client is the power of attorney which mu(r)t be duly signed by the letter. In other words, before a pleader can act for a. party he must have been authorised by him i.e. the party, to do so in writing. It is now well little that presenting a plaint or a memorandum of appeal amounts to acting on the part of the pleader. Hence, it cannot be urged by any stretch of reasoning that there was no lacuna in the appeal when it was filed. An appeal filed by several appellants apparently is a single indivisible appeal and it ii simply preposterous to suggest that it could have been treated by the office as an appeal on behalf of some of the appellants only. The only course open to the appellants in a situation like this was to seek amendment of the memorandum of appeal and transpose the appellants who were not willing to join in the appeal or who had not executed the power of attorney in favor of the counsel, as respondents. But surely the Court cannot treat the appeal as it stands as one by appellants I & 2 only as is sought to be suggested by the learned counsel for the appellants. Needless to say that when an appeal is filed by a person through an agent the Court has the power to enquire into the agent's authority. Hence, I have no hesitation in saying that the appeal was not complete in all respects when it was filed. The Deputy Registrar was justified in returning the same for removing the defects.
(11) The question to be seen then is whether the filing of the appeal without a proper power of attorney would be fatal to the appeal itself or not. The consensus of the judicial opinion is that where a pleader acts without proper authority he acts with irregularity but the same is curable. Hence, the practice of the Court always is to give opportunity to the counsel to remove the defect and rectify the omission. ln Govind Singh v.Deoraj,, it was held that 'the presentation of an execution application in Court is an 'act' as contemplated by Order Iii Rule 4 and no pleader should act for any person in any court unless he has been appointed for the purpose by a document in writing signed by such person or by his recognised agent.' However, it was further observed that if there is some lacuna or defect left in the vakalatnama on account of a bona fide mistake or error either on the part of the decree-holder or his counsel the defect in presentation would not make the execution application a nullity and the court would have power to allow the decree-holder to cure that defect. Their Lordships, however, emphasised that such an irregularity may be allowed to be cured by the court only in those cases where it finds that the mistake has been committed bona fide and where the party has not committed gross negligence. The party will not have the power to correct the error as of right but it may be remedied if the court allows it to be cured after exercising proper judicial discretion. I am in respectful agreement with this view. Reference in this context be also made to the Full Bench decision of Andhra Pradesh High Court in Nadella Satyanarayana v. Yamanoori Venkata Subbiah, Air 1957 A P 172, Haji Mohamed Abdullah& Others v.C. Abdul Rahiman & others, : AIR1964Mad234 , Nawab & others v Charagh, Air 1936 Lah 195 and Lohkud another v. Bhola Ram . In the last mentioned case the learned judicial Commissioner observed :
'Where thereforee there is nothing to show. as it is not in the present case, that the defect in the drawing up of the memorandum of appeal was deliberate, the proper order to pass under Rule 3 is not its rejection but, if possible its amendment then and there, or its return to the appellant for that purpose. If, inspire of the attention of the appellant hiving been drawn to the defect he fails to rectify it by amendment within the time fixed by the Court, an order rejecting the memorandum of appeal should be justified.'
(12) I am, thereforee, of the considered view that the Deputy Registrar was perfectly justified in returning the appeal for removal of defects noticed by the office. It was, thereforee, bounden duty of the appellants to remove the defects and refile the appeal within the time prescribed by the Deputy Registrar. At any rate they should have asked for more time and the same could be extended by the Deputy Registrar up to 40 days. However, no such prayer was ever made by the appellant. No prayer was made even to the Court after the expiry of 40 days for condensation of delay or extention of time to remove the defects. So, the question would arise whether this Court should now condone the delay on the mere cryptic note of counsel for the appellants made at the time of refiling or decline condensation of delay having regard to the colossal negligence and carelessness on the part of the appellants/ their counsel.
(13) The learned counsel for the appellants is right in saying that the appeal having been filed within time initially the question of condensation of delay under Section 5 of the Limitation Act does not arise. Obviously the said Section would not be attracted because there was no delay in filing the appeal as such. So, the only question which falls for determination is whether the delay in refiling the appeal should be condoned or not. It may be pertinent at this stage to say that the Punjab High Court Rules & Orders being statutory rules have the force of law. Reference in this context be made to Tej Krishen v. The Delhi Cloth and General Mills Co Ltd. & others, Air 1950 P&H; 195 and Bikram Dass v. The Financial Commissioner, Revenue, Punjab, . In the latter authority a Full Bench of the Punjab & Haryana High Court held that :
'Rules of procedure have been framed by this Court in exercise of its rule making power available to it under Sections 122 & 129 of the Code of Civil Procedure or Clause 27 of the Letters Patent. So, the said Rules have the force of law. thereforee, non-compliance with any rule framed by this Court prescribing a condition precedent or a necessary condition to the filing of an appeal, would render the memorandum of appeal liable to rejection.'
(14) One of the questions referred to the Full Bench in the said case was whether Rule 3 of Chapter 20 of the Punjab and Haryana High Court Rules & Orders was mandatory or merely directory. The Full Bench answered the question saying that the provision contained in the said rule was imperative and thus violation would entail penal consequences. The same question cropped up for consideration before the Supreme Court in The State of Punjab another v. Shamlal Murari &another;, : [1976]2SCR82 . While holding that the Rule 3 of Chapter 2-C Volume V of Punjab and Haryana High Court Rules and Orders which requires the enclosing of three copies of documents mentioned in the rule along with the Letters Patent Appeal was directory In nature, their Lordships held that :
'Where copies of all the three documents prescribed, have been furnished but not three copies of each, the commission or default is only a breach which can be characterised as an irregularity to be corrected by condensation on application by the party fulfillling the condition within a time allowed by the Court.'
(15) It is pertinent to notice here that the Supreme Court declined to condone the delay in the said case with the observations :
'Discretionary exercise of power by a Court cannot be lightly interfered with by a Court of appeal, and we are loathe, thereforee, to upset the order of the High Court declining to condone the delay, there being nothing perverse Or irrational in the exercise.'
(16) So, even though the decision of the Punjab and Haryana High Court with regard to the mandatory nature of Rule 3 of Chapter 2-C was over-ruled, their Lordships in terms recognised that it was discretionary with the High Court to condone the delay/non-compliance with the requirements of the Rules & Orders framed by the High Court, or not,
(17) Still later, the same very question cropped up before the Supreme Court in Special Leave against the aforesaid Full Bench decision of the Punjab & Haryana High Court. (Bikram Dass v. Financial Commissioner Mothers, : [1978]1SCR262 ) The Supreme Court held that Rule 3 of Chapter 2-C, Punjab & Haryana High Court Rules and Orders, was directory and not mandatory. That being so, substantial compliance therewith was enough to meet its requirements. Since one complete set of three documents specified in Rule 3 was filed along with the memorandum within the prescribed period of 30 days, there was substantial compliance with the rule and, thereforee, it was erroneous to treat the appeal as being barred by limitation. So, the failure to file the two additional sets of documents was a mere irregularity which the High Court in exercise of its discretion could condone by granting further time for formal compliance with the rule. On facts .the Supreme Court found that there was sufficient ground for condensation of delay. The following further observations made by the Supreme Court in this context are very pertinent to note :
'SECTION 5 of the Limitation Act is a hard task master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that thereforee a litigant who is not vigilant about his rights must explain every day's delay. These and similar considerations which influence the decision of Section 5 applications takeout of place in cases where the appeal itself is preferred within the period of limitation but there is an irregularity in presenting it. Thus, in the instant case there was no occasion to invoke the provisions of Section 5, Limitation Act, or of Rule 4, Chapter 1, of the High Court Rules. If the Division Bench were aware that Rule 3 of Chapter 2-C is directory, it would have treated the appeal as having been filed within the period of limitation, rendering it in apposite to consider whether the delay caused in filing the appeal could be condoned'.
(18) Another Supreme Court judgment which may be noticed in this context is Indian Statistical Institute v. Mis. Associated Builders & Ors. Air 1978 Sc 335. In that case objections to an award had been filed within time but the objection petition being defective in that the necessary stamps were not affixed and the date of the verification of the petition was not entered, the memorandum of objection was returned for rectifying the defects. However, the objection petition was refiled after a very long time. The Supreme Court reiterated that Section 5 of the Limitation Act had no application when there was no delay in presenting the objection petition and the delay in re-presentation was not subject to rigorous test which was usually applied in excusing the delay in a petition under Section 5 of the Limitation Act. In other words, the delay, if any, was in complying with the directions of the Registrar to rectify the defective and re-filing the objections. The Supreme Court further observed that on the facts disclosed sufficient grounds were made out for condoning the delay in filing the objections especially when the High Court had proceeded on the assumption that Section 5 of the Limitation Act applied and as such there was delay in filing the objections for setting aside the award.
(19) The sum and substance of these authorities, thereforee, is that while Section 5 of the Limitation Act would not be attracted to a case where . 'an appeal/objection has been initially filed within the prescribed period of limitation and the same docs not suffer from any infirmity of a vital nature but delay in refiling the appeal after removing the defects as pointed out by the Deputy Registrar while returning memorandum of appeal/petition has to be explained and the High Court may in exercise of its discretionary power condone the same or not. Of course, the rigours of law of limitation would not apply to such a situation and the Court has simply to satisfy itself that there is a plausible Explanationn for the delay. Since Rule 5(1) Chapter I A of the High Court Rules and Orders, Volume V, prescribes a maximum limit of 40 days up to which time can be allowed by the Deputy Registrar for refiling the appeal after removing the objections it was incumbent on the appellants to seek extension of time from the Deputy Registrar hinder the said Rule. thereforee, the appellants could approach the Court for condoning the delay if it had not occurred due to any avoidable lapse on their part. However, nothing of the kind was done and the appellants slept over the matter for as long as nine months. Surely it cannot be said by any stretch of reasoning that there is no sanction behind the aforesaid rule and the Court will be powerless to reject the memorandum of appeal or impose any other appropriate penalty if the appellant behaves in a totally negligent, reckless or erratic manner in not refiling the appeal after removing the defects within a reasonable time. He cannot just sit at home quietly and act at leisure. While some indulgence in the matter may be permissible but it will be wrong to say that the Court will have no option but to accept the memorandum of appeal as and when refiled despite sheer negligence and lack of responsibility on the part of the appellant or his counsel in complying with the direction of the Deputy Registrar) Observed the Supreme Court in Kalipada Das and others v. Bimal Krishna Sen Gupta, : AIR1983SC876 :
'Supplying paper books is a procedural requirement devised to facilitate rendering justice. In other words, it is a procedural step in aid of justice and not substantive justice itself. The institution of judiciary may not be able to function if there is no sanction behind the Court's order. But penalty of failure to comply with Court's order providing a procedural stage in aid of justice must be commensurate with the gravity of the lapse. If the penalty imposed is disproportionate to the gravity of the lapse or omission, the procedural stage instead of becoming a step in aid of justice would be * road block to justice.'
(20) As a learned Judge of Punjab & Haryana High Court said in Gurbachan Singh v. Mastan Singh, etc., 1984 (1) RAj 619 :
'These rules have been made by the High Court to further the ends of justice. A party cannot be given undue latitude in comply ing with the orders of the Registry to remove the defects pointed out in appeal. The appellant cannot be permitted to move at leisure. If great latitude is given to the litigants then they might not only take months but years for complying with the orders'.
(21) The appellant in the said case had taken 85 days to refile the appeal after removing the defects pointed out by the Registry. The position In the instant case is still worse as the appellants took nearly nine months in refiling the appeal and no Explanationn for this inordinate delay except the vague averment that the file was misplaced is forthcoming. Indeed, the learned counsel for the appellants did not try to justify the delay in re-presenting the appeal and his main plank was that the original order of the Deputy Registrar in returning the appeal was not warranted by law.
(22) Before concluding I may also advert to an unreported judgment of this Court in Inder Raj etc. v. Union of India, R.F.A. No. 166/81, decided on 31st July, 1981. The appeal was returned in 1969 for removing the defects, but it was never refiled and it was only in or about February 1981 that the appellant on coming to know of the same approached this Court and prayed for hearing of the appeal. The learned Single Judge (T.P.S. Chawla, J.) was fully satisfied that the delay in filing the appeal was on the part of the counsel for the appellant who did not even inform the appellant about the defects and the whole conduct of the appellant was quite innocent. So, following the decision of the Supreme Court in Indian Statistical Institute (supra) his Lordship condoned the delay because rigorous tests usually applied under Section 5 of the Limitation Act were not to be applied in the case of late refiling. So, this judgment is of no avail to counsel for the appellants in the instant case.
(23) The upshot of the whole discussion, thereforee, is that there is absolutely no reason for condoning the delay in refiling this appeal. It is accordingly dismissed.