HIGH COURT OF HIMACHAL PRADESH
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Chowdhry, J.C. -
(1.) This is an application in revision by Lohku defendant for self and as guardianadlitem of Roshan, defendant. There was a third defendant, Sundar, who is not a party to this revision.
(2.) Bhola Ram respondent obtained a decree for possession of some land on 15- 5-1950 against the aforesaid three defendants from the Court of the Subordinate Judge of Sarkaghat. An appeal, purporting to be on behalf of all the three defendants, was filed in the Court of the Senior Subordinate Judge of Mandi on 24-6-1950. There was a vakalatnama in favour of a counsel signed by Lohku defendant only, but the memorandum of appeal was signed neither by any of the appellants nor by the counsel. The Senior Subordinate Judge therefore passed an order on 28-6-1950 rejecting the appeal. The present Lohku and Anr. vs. Bhola Ram (25.03.1952 - HPHC) Page 1 of 3 revision has been filed against that order of rejection of appeal.
(3.) There is no doubt that the signing of the memorandum of appeal by the appellant or his pleader is mandatory under Order 41, Rule 1, C. P. Code; but the rejection of a memorandum of appeal not so drawn up under Rule 3 of the said Order is only discretionary. The latter rule provides that where the memorandum of appeal is not drawn up in the manner prescribed before, it may be rejected, or be 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. The word used is 'may' and not 'shall', and rejection of the memorandum of appeal is only one of the orders that may be passed by the Court. The other alternative orders provided are returning of the memorandum to the appellant for the purpose of being amended, and the amendment of the memorandum then and there. Where therefore 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, inspite of the attention of the appellant having 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 would be justified.;
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