Satyanarayana Sahu And Others vs Khirod Kumar Sahu And Others ... ... on 4 July, 2025

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Orissa High Court

Satyanarayana Sahu And Others vs Khirod Kumar Sahu And Others ... ... on 4 July, 2025

Sashikanta Mishra,J. The Petitioners are defendants and Opp.Party No.1 is the Plaintiff in C.S. No.86/2022 pending in the Court of learned Civil Judge (Sr. Division), Titlagarh. Opp. Party Nos.2 to 20 are the C.M.P. No.611 of 2024 Page 1 of 12 proforma defendants in the said suit. In the present application, the Petitioner-defendants call in question the correctness of order dtd.7.3.2024 passed by the court below whereby, their application for acceptance of written statement filed belatedly was rejected.

2. Bereft of unnecessary details, the facts of the case are that the aforementioned suit has been filed for partition of the suit properties. Upon receipt of summons, the contesting defendants entered appearance but did not file written statement within the stipulated period. It is stated that the Petitioners are residents of Cuttack and are of advanced stage. As such, they had prepared the written statement at Cuttack which being supported by affidavit was notarized at Cuttack. The said written statement was thereafter sent to their Advocate at Titlagarh for filing. The written statement was filed along with an application on 20.1.2023 for acceptance of the same. The Plaintiff-Opp. Party No.1 filed objection to the petition contending that the same was contrary to the provisions of Order III Rule 4 and Order VI Rule 14 of C.M.P. No.611 of 2024 Page 2 of 12 C.P.C. After hearing both parties, the Court below rejected the Petition filed by the defendants for acceptance of the written statement vide order dated 7.3.2024. The said order is impugned in the present application.

3. Heard Mr. S.S.Rao, learned Senior counsel with Mr. B.K.Mohanty, learned counsel, appearing for the Defendant-Petitioners and Mr. P.K.Rath, learned Senior counsel with Ms. S. Rath, learned counsel appearing for the Plaintiff-Opp. Party No.1.

4. Mr. Rao would argue that the court below adopted a hyper-technical approach to reject the application filed by the defendants for acceptance of the written statement. The Court below completely misinterpreted the provisions under Order III Rule 4 and Order VI Rule 14 to hold that the same were violated as the advocate identifying one of the defendants in the affidavit appended to the written statement was not authorized by them to act as counsel in the suit. This, according to Mr. Rao, is entirely erroneous because firstly, a Vakalatnama had C.M.P. No.611 of 2024 Page 3 of 12 been executed by the defendants in favour of the said advocate and secondly, even assuming he was not so empowered, fact remains that he had merely identified one of the defendants before the Notary Public in the affidavit. Mr. Rao concludes his argument by submitting that by adopting such technical approach, the cause of justice has been defeated.

5. Mr.P.K.Rath, learned Senior Counsel, on the other hand, would argue that the provisions under Order III Rule 4 as well Order VI Rule 14 are required to be strictly complied with. He submits, Rule 4 begins with a negative injunction to the effect that 'no pleader shall act for any person in any Court unless he has been appointed for the purpose.' In the affidavit appended to the written statement one Somanath Sahu, advocate has identified Defendant No.1 but he was not authorized by the defendants to appear for them in the suit. Further, the advocate is required to give a certificate that the contents of the written statement have been read over and explained to the defendants and accordingly he identified them. C.M.P. No.611 of 2024 Page 4 of 12 Advocate Somanath Sahu has merely given a certificate below the affidavit regarding typing of the written statement in thick papers, which he was not competent to do.

6. Admittedly, the written statement of Defendants 1 to 4 was not filed within the stipulated time of 90 days as provided under Order VIII Rule 1 of C.P.C. As such, the written statement was filed along with an application for its acceptance. The grounds urged in the application for acceptance of the written statement do not appear to have been considered at all by the court below as is evident from perusal of the impugned order. The application was rejected mainly on the ground that Vakalatnama was filed on behalf of Defendant Nos.1 to 4 on three occasions. On the first occasion, Vakalatnama empowering Advocate R.K.Padhi and others was filed on 30.11.22. On 24.1.2023, Defendant No.1-Satyanarayan Sahu filed Vakalatnama appointing Advocate Somanath Sahu, R.K.Padhi and others. Again on 26.2.2023, the defendants filed Vakalatnama appointing Advocates C.M.P. No.611 of 2024 Page 5 of 12 Somanath Sahu, R.K.Padhi and others as their counsel. The application was filed on 20.1.2023. The court below has taken objection to the fact that as on that date, Somanath Sahu was not authorized to act as counsel for the defendants. Much has been argued with regard to the provision under Order III, Rule 4 of C.P.C. in this regard, which is reproduced herein below;

4. Appointment of pleader.--

(1) 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 or by some other person duly authorised by or under a power-of-attorney to make such appointment.

(2) Every such appointment shall be filed in Court and shall, for the purposes of sub-rule (1), be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client.

Explanation. --For the purposes of this sub-rule, the following shall be deemed to be proceedings in the suit,--

(a) an application for the review of decree or order in the suit,

(b) an application under section 144 or under section 152 of this Code, in relation to any decree or order made in the suit,

(c) an appeal from any decree or order in the suit, and

(d) any application or act for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or of obtaining refund of moneys paid into the Court in connection with the suit.

(3) Nothing in sub-rule (2) shall be construed--

(a) as extending, as between the pleader and his client, the duration for which the pleader is engaged, or C.M.P. No.611 of 2024 Page 6 of 12

(b) as authorising service on the pleader of any notice or document issued by any Court other than the Court for which the pleader was engaged, except where such service was expressly agreed to by the client in the document referred to in sub-rule (1).

(4) The High Court may, by general order, direct that, where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the order. (5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in court a memorandum of appearance signed by himself and stating--

(a) the names of the parties to the suit,

(b) the name of the party for whom he appears, and

(c) the name of the person by whom he is authorised to appear: Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party;

Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party.

ORISSA HIGH COURT AMENDMENT Sub-rule (6) to Rule 4 added as follows:

"No pleader shall be entitled to make any application, or do any appearance, or act for any person unless he presents an appointment in writing duly signed by such person or his recognised agent or by some other agents duly authorised by power of attorney to act on his behalf or unless he is instructed by an attorney or pleader duly authorised so as to act on behalf of such person"- (25.5.1984)."

7. There is no dispute with regard to the principle embodied in the provision quoted above that a pleader cannot act for any person in any Court unless he is duly authorized by such person to do so. This C.M.P. No.611 of 2024 Page 7 of 12 authorization is obviously intended for the Court proceeding. This is clearly distinct and separate from identifying a person in an affidavit. While Order VI Rule 14(4) of C.P.C. requires that the pleadings of the parties shall be accompanied by an affidavit in support thereof, the same, per se, cannot be read into the provision under Order III Rule 4 of C.P.C. In other words, the expression 'no pleader shall act for any person in any Court' is different from the act of identifying the person swearing the affidavit. Be it noted that the affidavit itself is not sworn before the Court but before a Commissioner of Oaths (Notary Public) authorized in law for the purpose. In the instant case, the affidavit was sworn before the Notary Public at Cuttack whereas the suit was pending in the Court at Titilagarh. This is a common and valid practice accepted by all Courts. Further, the person swearing an affidavit before the Notary Public requires to be identified and any person competent to do so can identify the executant. In the instant case, Advocate Somanath Sahu has identified the Defendant No.1 who C.M.P. No.611 of 2024 Page 8 of 12 has sworn the affidavit. This Court is of the considered view that for such purpose only the advocate is not required to be specially authorized by the executant by a Vakalatnama. Furthermore, the affidavit can be sworn at any place without any restriction. It would therefore be too much to demand that only an advocate holding power on behalf of the executant in the case is competent to identify him wherever the affidavit may be sworn. The court below appears to have misconstrued the requirements of Order III Rule 4 of C.P.C.

8. Coming to the verification of the written statement, this Court finds that all the defendants have jointly verified the written statement which is as per Order VI Rule 15 of C.P.C. Further, all the defendants have signed on each page of the written statement, which is in consonance with the provision under Order VI, Rule 14 of C.P.C. This Court therefore, fails to understand as to how the aforementioned provisions were held to be not complied with.

C.M.P. No.611 of 2024 Page 9 of 12

9. Even assuming that there was some defect in the verification of the affidavit, the same is obviously a curable defect, which can be rectified. This is the settled position of law. Reference in this regard may be had to the judgment of this Court in the case of Bhalu Naik vs. Hemo Naikani; 35(1969) C.L.T. 532. It is well settled that procedure is the handmaid of justice. In the words of Justice V.R. Krishna Iyer in his celebrated judgment in the case of State of Punjab v. Shamlal Murari; AIR 1976 SC 1177:

"We must always remember that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, though procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the C.M.P. No.611 of 2024 Page 10 of 12 case, court should not enthrone a regulatory requirement into a dominant desideratum. After all, courts are to do justice, not to wreck this end product on technicalities.

Viewed in this perspective, even what is regarded as mandatory traditionally may, perhaps, have to be moderated into wholesome directions to be complied within time or in extended time."

10. If the court below was of the view that the defendants were not properly represented by the counsel, opportunity ought to have been granted to them to remedy the defect instead of rejecting their application at the threshold on technical grounds. As was rightly argued by Mr. S.S.Rao, learned Senior counsel, in the process, the cause of justice has been defeated inasmuch as the written statement of the defendants, which forms the bedrock of their defence, has been thrown out.

C.M.P. No.611 of 2024 Page 11 of 12

11. For the foregoing reasons therefore, this Court is of the considered view that the impugned order cannot be sustained in the eye of law.

12. The CMP is therefore, allowed. The impugned order is set aside, the Court below is directed to accept the written statement filed by the defendants and in case any defect in their representation by counsel is noticed, due opportunity shall be provided to them to rectify the same within a reasonable period. The suit shall proceed thereafter in accordance with law.

................................ Sashikanta Mishra, Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Designation: A.D.R.-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Jul-2025 11:15:01 C.M.P. No.611 of 2024 Page 12 of 12

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