The Delhi High Court has deprecated the practice of filing of an appeal by a third party as it can be done without the knowledge of the missing person and lead to irreparable harm

By Dr Swati Jindal Garg

American civil rights icon Martin Luther King said: “Injustice anywhere is a threat to justice everywhere!” However, the Delhi High Court in a recent judgment deprecated the practice of filing of an appeal by a third party on behalf of the missing person.

Dealing with an appeal filed by a third person who claimed to be the sister of the appellant, a single bench of Justice C Hari Shankar observed: “Such a practice, if allowed, can lead to catastrophic consequences. On the pretext that the unsuccessful party before the Court below is not available, or traceable, any third party can file an appeal, on behalf of the missing unsuccessful party, behind his back and without his knowledge, and, needless to say, without any authorization from him whatsoever. The rights of the unsuccessful party can, thereby, be seriously prejudiced, and may, in a given case, even lead to irreparable harm.”

The case pertains to an order passed by an additional district judge (ADJ), which was then challenged. The judgment was in favour of Mother Dairy and against a person named Rakesh Kumar Sharma who went missing even before the judgment was reversed by the ADJ. Rakesh hence never had the opportunity to see the judgment which was against him, much less take a conscious decision to appeal against it. He was, therefore, unaware of the appeal subsequently filed in his name and on his behalf in the Delhi High Court.

The appeal was neither signed by him nor was it accompanied by any vakalatnama authorising the counsel who filed the appeal to prosecute the matter. The counsel, on being asked, submitted that she was the sister of Rakesh and was certain that had he been available after the impugned judgment had been passed and had an occasion to see the impugned judgment, he would certainly have desired to file the appeal.

Taking note of this, the High Court said: “To a query from the Court as to how Ms. Kiran can be sure that her brother, had he been there to see the impugned decision when it was rendered, would have desired to appeal against it, her response is, ‘I know he would. Who wouldn’t?’ This intricate exercise of psychoanalysis of Rakesh Kumar Sharma, undertaken in absentia (as Rakesh Kumar Sharma went missing even before the impugned judgment was passed), cannot authorize the filing of the present appeal on behalf of a person who has never even seen the impugned order, much less taken a decision to file an appeal against it, or instructed its filing.”

The Court concluded that at the end of the day, an appeal can be filed on behalf of a litigant only if he wants it to be filed and by a person whom he authorises. It, therefore, said that the appeal was completely incompetent and dismissed it.

From the legal point of view, almost all major legal jurisdictions consist of appeal provisions, and civil laws are not on the contrary. The rights of appeal under the Civil Procedure Code are not natural or inherently attached to the litigation, but are rendered by the statute or by rules enforced by the statute. An appeal under the Civil Procedure Code can be made under the following grounds:

• A decision has already been made by a judicial or administrative authority.
• A person is aggrieved of such decision, whether or not he is a party to the proceeding.
• The appeal is entertained by a reviewing body.

The Code also enumerates the persons who are competent to file an appeal.

This includes: 

• Any party to the original proceeding or his/her legal representatives.
• Any person claiming under such party or a transferee of interests of such party.
• Any person appointed by the court as the legal guardian of a minor.
• Any other aggrieved person after taking leave of the court.

The Code also enumerates the persons who cannot file an appeal, namely:

• A party which has relinquished its right of appeal as per an agreement which is clear and unambiguous.
• A party which has availed the benefits under a decree.
• Parties with a consent decree. Consent, in this case, could be a lawful agreement or compromise, or could even be presumed from the conduct of the parties.
• Parties whose factum or compromise are in dispute or hasn’t been formulated.
• Parties involved in petty cases.
• No legal representatives are entitled to file an appeal against a deceased person.

Hence, filing of an appeal is not a process that can be undertaken lightly by any person who appears to be aggrieved by the passing of the said order till the time that person falls under any of the categories that have been laid down under the Code. The right to appeal is not inherent, and therefore, must be created in express terms by the statute. Thus, these rights differ from the rights of filing suits, which are inherent in nature.

The right to appeal is a substantive right which cannot be made void, except through a statute (either expressly or by implication). The discretion of the appellate authority (refers to the authority which undertakes and adjudicates the initial review appeal) is conclusive and cannot be challenged except as per law. The procedure states that any appeal under these provisions must be supported with a memorandum of appeal, which is a document comprising the grounds of appeal. The constituents of a valid memorandum of appeal include:

• The grounds for filing an appeal.
• Signature of the appellant or his/her pleader.
• The attachment of the certified copy of the original judgement.
• The remittance of the decretal amount or security (in case of a money decree).

The appellant, with respect to this provision, is not entitled to take any grounds or objection except the ones mentioned in the memorandum. However, the court may accept such objections on its own accord provided the opposite party is provided with adequate opportunities to contest such grounds. The court has the right to reject or amend any memorandum which it finds to be inappropriate, but it shall only do so after recording the reasons for such rejection.

In the present case, the appellant was not to be found. Hence, it was unacceptable to the court that the counsel, who also claimed to be his sister, filed the case without his instructions and knowledge. The counsel further claimed that she had used a vakalatnama that was already in her possession and had not been given to her expressly for this matter. Such practice, if allowed, will have a Domino Effect and result in the failure of justice. This is because people will file cases through a third party and on losing the case, claim that they were unaware that an appeal had been filed on their behalf. On the other hand, such unsuccessful parties, if represented through a third party, may also have a valid grievance that they were not represented properly and that their rights were infringed upon. Ligation in such cases will thus never end.

The Delhi High Court, through this judgment, has set the ball rolling in a direction that might have sounded the obvious one to many, but was being misused by some to the detriment of the principles of natural justice. The judgment has proven to be a step in the right direction in reiterating the set law. This procedure needs to be adopted while filing an appeal in the higher courts. 

—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi

The Gujarat High Court has dismissed the application which was filed by 46 councillors of the Morbi Nagar Palika (MNP) seeking to to intervene in the suo motu case on the Morbi bridge collapse, on the ground that the State government is likely to dissolve the civic body and take over its administration.

A Division Bench of Chief Justice Aravind Kumar and Justice Ashutosh J Shastrimade said that the Court has so far not passed any order for the state to take over MNP.

The Court added that the applicant councillors ‘absolutely misunderstood’ its observations.

Chief Justice Kumar stated that  it was the Advocate General who  has submitted that the State is contemplating to take a decision (to supersede). 

The Court clearly added that as far as court is concerned we haven’t ordered or directed the State to do so.

The Chief Justice of Gujarat High Court also said  that just on mere apprehensions that the State might take some decision,we cannot allow any intervention.

Senior Advocate Navin Kumar Pahwa,who was  representing the councillors said that on November 24, the Bench had in an order observed that the State should exercise its powers under the Gujarat Municipalities Act and dissolve the Morbi Nagar Palika. 

The advocate pointed out that the observations of the Court are considered as directions and that the State was likely to take a decision superseding the civic body.

Pahwa argued that the councillors have fought elections and won the same. he added that it seems now by virtue of this Court’s observations, the State would give a go-bye to the procedures for dissolving a civic body and send us home. 

The observations are going to affect us adversely. Thus, we seek to be impleaded as a party in the present proceedings.

The Court is empowered under the Civil Procedure Code (CPC) to implead or join parties as may be necessary in order to enable it to effectually adjudicate upon a given case.

The Court said that it has  observed (in one of our earlier orders) that there was a default on part of the civic body and in this view we had posed to the State as to why it hasn’t taken action against the civic body.

It further added that Even before an action is taken, the present application has been filed to thwart the present proceedings. The applicants, thus cannot be construed to be necessary or proper parties.”

The Bench however added that added if at all there are any steps taken by the State, it would be open for the councillors to challenge the said decision.

The Court dismissed the civil application and said tgat we are of the opinion that the councillors, aren’t a necessary or proper party. At this stage, their presence isn’t necessary and thus, we dismiss the civil application.

During the course of the hearing, the Bench also allowed the private contractor, Ajanta, which was roped in for carrying out repair works on the bridge, to intervene in the proceedings. This, after another intervenor – the kin of two victims who died in the incident – sought to implead the contractor as a party to the petition.

The matter will be next heard on January 19, 2023.

The Punjab and Haryana High Court has dismissed a petition seeking appointment of local commissioner in divorce case for wife’s medical test.

A Single Bench of Justice Justice Manjari Nehru Kaul passed this order while hearing a petition filed by Vishal Vashisht.

Prayer in the petition filed under Article 227 of the Constitution of India is for setting aside the order dated 28.07.2022 vide which the Additional Principal Judge (Family Court), Jalandhar dismissed the application of the petitioner for appointment of a Local Commissioner for getting the expert opinion with respect to the disease, i.e, Rheumatoid Arthritis of the respondent.

Counsel for the petitioner while addressing arguments on the question of maintainability of the petition, submitted that the supervisory jurisdiction of the Court under Article 227 of the Constitution of India is wider than the revisional jurisdiction under Section 115 of the Civil Procedure Code, therefore, the petition would be maintainable.

On merits of the case, counsel for the petitioner submitted that the impugned order suffers from patent illegality and thus, deserves to be set aside.

He further submitted that the petitioner in his petition filed under Section 13 of the Hindu Marriage Act has categorically pleaded that the respondent was suffering from Rheumatoid Arthritis even prior to their marriage. Hence, the non-disclosure and concealment of her state of health and illness amounted to cruelty.

He also submitted that in order to prove the fact that the respondent had been suffering from the said disease, even prior to the solemnization of their marriage, the appointment of the Local Commissioner for giving expert opinion regarding the origin/history of the disease would be necessary for the just and effective adjudication of the petition filed under Section 13 of the Hindu Marriage Act.

Counsel for the petitioner said that the petitioner has a right to prove his case by leading cogent evidence and hence, the appointment of the Local Commissioner would be necessary, which fact has been erroneously ignored by the learned Family Court while passing the impugned order.

“It would be pertinent to notice that the Division Bench of the Court in “Pritam Singh vs Sunder Lal”, 1990 (2) PLR 191, has held that a revision against an order refusing to appoint a Local Commissioner would not lie as it is the discretion of the Court to appoint a commissioner and in case the Court refuses to appoint a commission, then, no right of any party can be said to have been prejudiced.

The case laws relied upon by the counsel for the petitioner would not come to his rescue as in the case, the order refusing the appointment of the Local Commissioner, neither any issue has been decided, nor the rights of the parties adjudicated. Hence, the impugned order is not revisable”, the Court observed.

“Even otherwise, it is trite law that a party cannot be allowed to collect evidence through the Court. Each party has to lead evidence in support of its case and it cannot be allowed to lean on the Courts for the same. Furthermore, the Local Commissioner cannot be permitted to perform a medical test upon the respondent without her consent as it would without a doubt amount to violation of her right to privacy.

As a sequel to the above, the Court is not inclined to invoke its revisional jurisdiction under Article 227 of the Constitution of India”, the Court said while dismissing the petition.