Curable defect in vakalatnama or authority does not invalidate an appeal where filing was bona fide and authorised.

A bona fide defect in signing or authorising an appeal memorandum, including omission or irregularity in the vakalatnama, does not automatically invalidate the appeal where it was filed with the party's knowledge and authority. The Court held that existing representation could support the filing of the appeal and that such procedural defects should ordinarily be permitted to be cured unless the statute forbids it, the breach is deliberate, the defect affects jurisdiction or merits, or there is a complete absence of authority. The defect here was curable and the appeal was properly restored for decision on merits.

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Issues: (i) whether the appeal filed on behalf of the second appellant was defective or invalid for want of proper authority and vakalatnama, and (ii) whether the defect, if any, could be permitted to be rectified.

Issue (i): whether the appeal filed on behalf of the second appellant was defective or invalid for want of proper authority and vakalatnama

Analysis: The requirement under Order 41 Rule 1 and Order 3 Rule 4 of the Code of Civil Procedure is that an appeal must be signed and presented by the appellant or by a duly authorised pleader. The Court held that omission to file a separate vakalatnama, or an irregularity in the manner of describing the person representing a juristic entity, does not by itself invalidate the appeal where the appeal was filed with the knowledge and authority of the party and the office did not reject it at the threshold. It also noted that where counsel had already appeared for the party in the trial court, the existing authority could support the filing of the appeal under Order 3 Rule 4(2) read with the Explanation.

Conclusion: The appeal on behalf of the second appellant was not invalid merely because of the alleged defect in representation.

Issue (ii): whether the defect, if any, could be permitted to be rectified

Analysis: The Court reiterated that procedural defects which are bona fide and curable should not defeat substantive rights. It emphasised that courts should permit correction of defects in signing or authorisation, unless the statute expressly provides otherwise, the defect is not cured despite opportunity, the breach is deliberate or mischievous, the correction affects merits or jurisdiction, or there is a complete absence of authority. On the facts, the application to substitute the proper representative of the second appellant ought to have been allowed, and the defect could have been rectified.

Conclusion: The defect was curable and could be permitted to be rectified.

Final Conclusion: The High Court was right in restoring the first appeal so that the matter could be decided on merits, and the present appeal was dismissed.

Ratio Decidendi: A bona fide procedural defect in the signing or authorisation of an appeal memorandum, including omission or irregularity in the vakalatnama, does not automatically invalidate the appeal and may be corrected unless the defect is deliberate, incurable, affects jurisdiction, or there is complete absence of authority.

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