1 1 IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Supratim Bhattacharya C.O.1884 of 2025 With CAN 1 of 2025 NIRMAL KUMAR MANNA AND ORS. VS ANJAN MAITY AND ORS. For the Petitioner : Mr. Nirmal Manna, Sr.Adv., Mr. Sujit Saha. For the Opposite Party no.1: Mr. Rwitendra Banerjee, Mr. Shibasis Chatterjee, Mr. Aritra Roychowdhury. Delivered on : 27.08.2026 Supratim Bhattacharya, J. : 1. The learned Senior Counsel representing the petitioners submits that through the impugned order, the learned Trial Judge after considering the submissions of both sides has been pleased to reject the application filed under Section 151 of the Code of Civil Procedure, through which written statement and the written objection of the 2 2 defendant no.1 was prayed to be rejected and had also prayed for ex- parte hearing of the suit. 2. The learned Senior Counsel representing the petitioners has further submitted that in the power-of-attorney which was filed earlier, it did not have the signature of any learned advocate indentifying Sri Anjan Maity, who had appointed through the said power-of-attorney his father namely, Sri Shankar Maity. 3. Learned Senior Counsel has relied upon Section 85 of the Indian Evidence Act, 1872, corresponding to Section 84 of the Bharatiya Sakshya Adhiniyam, 2023 and has submitted that the Court shall presume every document purporting to be a power-of-attorney and to have been executed before, and authenticated by a notary public, or in Court, Judge, Magistrate, Indian Council or Vice-Council or representative of the Central Government, was so executed and authenticated. 4. Learned Senior Counsel has further submitted that through the application under Section 151 of the Code of Civil Procedure, the plaintiff/petitioner had also prayed for not accepting the written statement filed later as having being filed at belated stage. 5. He has further submitted that the written statement which has been subsequently filed that is on 18.01.2025, is beyond the statutory period as has been laid down under Order VIII Rule 1 of the Code of Civil Procedure, while in support of his contention the learned Counsel has relied upon an authority published in 1970(2)SCC 386, corresponding to AIR 1971 SCC 761 and has relied upon the fact 3 3 that presentation for registration could be either by the Principal or by a duly constituted attorney and has further submitted that it is equally plain that a proper power-of-attorney duly authenticated as required by law had to be made before power could be conferred on another either to execute the document or to present it for registration. He has further submitted that in the power-of-attorney the details of the place of residence of the son has not been mentioned. 6. Banking upon the aforesaid submission, learned Senior Counsel has submitted that the impugned order passed by the learned Civil Judge, Senior Division of Ghatal is liable to be set aside. 7. On the contrary, the learned advocate representing the opposite party has submitted that the signature of the Sri Anjan Maity has not been challenged, only the identification by the learned advocate being not there in the power-of-attorney, it has been challenged and subsequently on recognizing that the first power-of-attorney being not in regular form the opposite party/defendant has subsequently filed another power-of-attorney, dated 18.01.2025 thereby eradicating the procedural lapses and along with it has filed another written statement. 8. In support of his contention, the learned Counsel has relied upon two authorities, published at (2006)1SCC 75 and the other being 2002 SCC online Del 3, corresponding to 2002(62)DRJ 72. 9. Relying upon the same the learned Counsel has placed paragraph 15 and paragraph 17 of the judgment of the Hon’ble Apex Court, wherein 4 4 it has been stated that it is now well settled that any defect in signing the memorandum of appeal or any defect in the authority of the person signing the memorandum of appeal, or the omission to file the Vakalatnama executed by the appellant, along with the appeal, will not invalidate the memorandum of appeal, if such omission or defect is not deliberate and the signing of the memorandum of appeal or the presentation thereof before the appellate Court was within the knowledge and authority of the appellant. Such omission or defect being one relatable to procedure, can subsequently be corrected. It is the duty of the office to verify whether the memorandum of appeal was signed by the appellant or his authorised agent or pleader holding appropriate vakalatnama. If the office does not point out such defect and the appeal is accepted and proceeded with, it cannot be rejected at the hearing of the appeal merely by reason of such defect, without giving an opportunity to the appellant to rectify it. The requirement that the appeal should be signed by the appellant or his pleader (duly authorised by a vakalatnama executed by the appellant) is, no doubt, mandatory but it does not mean that non-compliance should result in automatic rejection of the appeal without giving an opportunity to the appellant to rectify the defect. If and when the defect is noticed or pointed out, the court should, either on an application by the appellant or suo motu, permit the appellant to rectify the defect by either signing the memorandum of appeal or by furnishing the vakalatnama. 5 5 10. He has further relied upon paragraph 17 of the said judgment wherein, it has been mentioned that non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief, should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. 11. The learned Counsel has relied upon paragraph 8,9 and 10 of the judgment published in 2002 (62) Delhi Reported Judgment 72 and has submitted that through the said paragraphs, the question that has been raised to be determined is: “8.Whether Mr. Ravi K. Maggon has been authorised to file and institute the suit or not. The very fact that actions of Mr. Ravi K. Maggon were ratified by way of fresh power of attorney which was duly notarised shows that the earlier power of attorney was in order but for its notarization. 9. Merely because the power of attorney is not duly notarised does not mean that the concerned person was not authorised to institute the suit. Notarization raises presumption as to its authentication and no more. Notarisation of power of attorney is a matter of procedure 6 6 and raises the presumption of authority of the person to institute the suit. In other words it does not mean that power of attorney executed in favour of a particular person but not duly notarised does not confer power upon the person to institute the suit. The objection taken by the learned counsel is that the said power of attorney does not bear any authentication by a Notary Public and therefore Mr. Maggon had no authority to file the present suit and as a consequence such a suit was never properly instituted. 10. The importance of power of attorney without notarisation cannot be undermined but at the same time if such a defect is removed subsequently during the pendency of the suit and that too is followed by ratification of the authority of a person who has been authorized to institute the suit, it is not such a fatal infirmity that would hit at the maintainability of the suit itself.” 12. On consideration of submission of the learned Counsels and on perusal of the authorities filed on behalf of the petitioners and on behalf of the opposite parties, it transpires that non-compliance with any procedural requirement relying to a pleading memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection. It has been laid down by the Hon’ble Apex Court in the judgment passed in the case 7 7 Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh And Another. 13. It is also fact that in the present list, subsequently on 18.01.2025, another power-of-attorney was filed, rectifying the procedural defects and in addition to the said power-of-attorney, a written statement was also filed. This subsequent rectification of the procedural defect has been considered by the learned Trial Court and has come to the finding that the prayer sought for through the application under Section 151 of the Code of Civil Procedure is liable to be rejected. 14. This Court is at one with the view of the learned Trial Judge, as to the fact that the son who had authorized his father through a power-of-attorney earlier has rectified the procedural defects, which were present in the first power-of-attorney by filing a subsequent power-of-attorney. 15. In such circumstance, it is presumed that the earlier power-of- attorney was executed by the son namely, Sri Anjan Maity, in favour of his father namely, Sri Shankar Maity. 16. This gives an effect that the earlier power-of-attorney which had some procedural defects was executed by the son in favour of his father and accordingly, the constituted attorney had taken steps in the present lis. 17. In such circumstance, this Court is of the view that by accepting the written statement filed by the defendant and rejecting the application under Section 151 of the Code of Civil Procedure, the 8 8 Trial Judge has not committed any error and as such the impugned order does not require any interference. 18. As such, the present revisional application is rejected. 19. C.O.1884 of 2025 is dismissed. 20. Applications, if any, connected thereto stand dismissed consequently. 21. Interim order, if any, stands vacated. 22. Photostat certified copy of this order, if applied for, be given to the parties on priority basis upon compliance of all formalities. (Supratim Bhattacharya,. J)