T.S. Misra, J. - (1.) THIS petition arises in the following circumstances. There is a house No. S/272 in mohalla Saraogi Nawabganj, Barabanki. Its owners were Anand Kumar Gupta and his mother, Smt. Ram Lali. The said house was allotted to Vinod Chandra Shukla by the Rent Control and Eviction Officer vide allotment order dated 12th March, 1974. An appeal under Section 18 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter called the Act) was filed by Anand Kumar Gupta and his mother, Smt. Ram Lali, in the Court of District Judge, Barabanki. During the pendency of the appeal Smt. Ram Lali died on 31st October, 1974. Vinod Chandra Shukla, the allottee, moved an application on 8th November, 1974 praying that the appeal was incompetent because the memorandum of appeal had not been signed by the Appellants. He also moved an application that the Vakalatnama filed by the Counsel did not bear the signatures of the Appellants. Anand Kumar filed an affidavit copy of which is Annexure 1 to the writ petition deposing that he and his mother who were the landlords of the house in question, had jointly preferred the said appeal against the allotment order dated 12th March, 1974 allotting the said house to the Respondent. He also deposed that the copy of the order as received by him had been enclosed with the memorandum of appeal. Further, he deposed that the said appeal was filed in the Court by the authorised Counsel of the Appellants, Sri. R.S. Bajpai Advocate on 27th March, 1974 and the said appeal was admitted by the Court on 28th March, 1974. He deposed that during the pendency of the appeal in the Court his mother, Smt. Ram Lali Appellant No. 2 had expired on 31st October, 1974 and he is the sole heir and legal heir of Smt. Ram Lali. The said appeal was lateron converted into a revision. The learned 1st Additional District Judge, Barabanki, who heard the revision, held that the revision was not incompetent on the aforesaid ground as alleged by the opposite party. On merits it was held that the allotment order was not in consonance with law ; consequently the revision was allowed and the order of allotment passed in favour of Vinod Chandra Shukla was set aside and the Rent Control and Eviction Officer was directed to pass proper order according to law after disposing of the release application of the revisionist Vinod Chandra Shukla has filed the instant petition under Article 226 of the Constitution for the quashing of the said order of the learned District Judge, Barabanki.
(2.) FOR the Petitioner the only point urged before me was that as the memorandum of appeal, which was later on converted into a revision, had not been signed by the Appellants, Anand Kumar Gupta and his mother Smt. Ram Lali, the same was not competent and the learned First Additional District Judge fell in error in holding otherwise. In order to appreciate the argument, it would be appropriate to refer to Rule 7 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972. Sub -para (1) of Rule 7 being material is extracted here in below: (1) Every appeal or revision under the Act shall be preferred in the form of a memorandum signed by the Appellant or revisionist or applicant, as the case may be, and his Counsel, if any, and presented either in person or through Counsel, to the District Judge or to the Munsarim of his Court. So, by reason of Rule 7 the memorandum of appeal or revision has to be signed by the Appellant or applicant, as the case may be, and his Counsel if there is any, hence it is necessary that the memorandum of appeal or revision should be signed by the Appellant or the applicant. It is, however, not necessary that the Appellant or the revisionist must also engage a Counsel but if he engages a Counsel then the memorandum of appeal should be signed by the Counsel as well. The learned Counsel for Anand Kumar Gupta, however, submitted that the word "and" appearing in Rule 7 should be construed as 'or" and hence the memorandum of appeal may be signed by the Appellant or his Counsel. I am unable to accept this contention. The word "and" cannot be construed or here as disconjunctive. Sub -para (1) of Rule 7 is in two parts. The first part requires that the appeal shall be preferred in the form of a memorandum. It further requires that the memorandum of appeal should be signed by the Appellant or the applicant "and" his Counsel. The second part deals with the presentation of the memorandum of appeal. The presentation of the memorandum of appeal or revision, as the case may be made either by the Appellant or the applicant himself "or" through Counsel. The third part deals with the forum. It says that the memorandum of appeal is to be presented to the District Judge "or" to the Munsarim of his Court. So, in the context in which the word "and" has been used in the first part of Sub -para (1) of Rule 7, it cannot be construed as "or". It requires that the memorandum of appeal should be signed by the Appellant and should also be signed by the Counsel if there is any Counsel engaged by the Appellant for the purpose. The distinction is obvious. Order XLI, Rule 1 of the Code of Civil Procedure requires that every appeal shall be preferred in the form of a memorandum signed by the Appellant "or" his pleader whereas Order VI, Rule 14 of the Code of Civil Procedure requires that every pleading shall be signed by the party "and" his pleader, if any. Thus in the case of the plaint it is to be signed by both the Plaintiff and his pleader if he has a pleader. Whereas in the case of memorandum of appeal filed under Order 41, Rule 1 Code of Civil Procedure it can be signed by either of them. The language of Order VI, Rule 14 as also of Order XLI, Rule 1 of the Code of Civil Procedure is, however, mandatory, yet, it has been the uniform view of all High Courts that the absence of or defect in the signature of the Plaintiff or the Appellant on the plaint or the memorandum of appeal, as the case may be, is not an illegality but only an irregularity which does not in any case affect the jurisdiction of the Court to entertain the plaint or the memorandum. The question first came up for consideration before the Privy Council in the case of Mohini Mohan Das v. Bungsi Buddan Saha, ILR 1890 Cal 580 where of the several co -Plaintiffs of a plaint only one of them had signed and verified it, but the Privy Council, nevertheless, held that the suit must be deemed to have been filed by the other Plaintiffs also inspite of the absence of any signature or verification by them, if only it was shown that the suit had been filed with their knowledge and authority. What has to be seen in such cases is whether the real Plaintiff or the real Appellant had intended or caused the plaint or the memorandum to be placed before the Court and if such intention appears clearly from the proved circumstances of the case, then any defect or omission to comply with any of the procedural rules regarding signature or verification is to be treated as a mere procedural defect which can be set right at any time by permitting an amendment of the document, irrespective of the question of limitation. This view of the Privy Council was followed by the Calcutta High Court in Shivnath Singh v. Commissioner of Income Tax West Bengal XXXIII ITR 691 and also by this Court in Wali Mohammad Khan v. Ishaq Ali Khan, AIR 1931 All. 507. A Special Bench of this Court in Wali Mohammad case held that absence of signature or verification or for the matter of that the absence of presentation on the part of some of the Plaintiffs out of several does not affect the jurisdiction of the Court and the suit must be deemed to have been duly instituted on their behalf if it was filed with their knowledge and authority. In Bharat Singh v. Board of Revenue, 1969 ALJ 59 D.S. Mathur, J. (as he then was) relying upon the case of Mohini Mohan Das (Supra) held that the plaint bearing the name of two Plaintiffs but presented and signed by only one shall be deemed to have been presented on the initial date of presentation even though the other Plaintiff signs the plaint at a much later date. A division Bench of this Court in the case of Rani Bhagwan Kunwar v. State of Uttar Pradesh, 1968 AWR 564 after referring to the various decisions of this Court as also of other High Courts held that defects in pleadings either by an omission of a party to sign personally, as required by Order 6, Rule 14 Code of Civil Procedure which is mandatory, or, to verify by a party or other person proved to be acquainted with the facts of the case, which is also mandatory, can be removed when the proper person comes forward before the Court and signs or verifies in accordance with law. It was laid down in R.B. Kunwar's case (supra): The result of the above mentioned....provision relating to the signature and verification of pleadings is made. Examining the provisions of the U.P. Virhat Jot Kar Adhiniyam in R.B. Kunwar's case it was observed: As a result of an examination of the provisions of the Act....its jurisdiction under Section 12 of the Act, dismiss the Petitioners appeal outright for such a defect. Further, it was observed: As regards a failure to sign and verify a memorandum of appeal under the Act, the irregularity could not be said to be substantial when the party intending to appeal had knowledge of the appeal and had, authorised an agent to file it and failed to sign and verify it due to a misapprehension.
(3.) RULE 7 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 came up for construction in Smt. Vidyawati v. Chawli Devi : 1978 AWC 769. It was observed in that case: Rule 7 lays down a rule of procedure. Its breach would, in my opinion not make the memorandum of appeal void. In any event, it was also the duty of the Court when entertaining the memorandum of appeal to see that it was not defective. It should have drawn the attention of the Appellant to this defect. If that had been done, the Appellant would have signed the memo, at that time itself .;