Such Practice Can Lead To Catastrophic Consequences: Delhi HC Deprecates Filing Of Appeal By Third Party On Behalf Of Missing Person
The Delhi High Court deprecated the practice of filing of an appeal by the third party on behalf of the missing person.
The Court was dealing with such an appeal and said that such practice can lead to catastrophic consequences.
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.”
Advocate K. Kiran appeared on behalf of the appellant while Senior Advocate Raj Birbal appeared on behalf of the respondent.
An order passed by the Additional District Judge (ADJ) was challenged in this case in which the judgment was in favour of Mother Dairy and against a person named Rakesh Kumar Sharma incidentally went missing on September 27, 2018, even before the said judgment was reversed by the ADJ. Rakesh never even had an opportunity to see the impugned judgment, much less take a conscious decision to appeal against it.
He, therefore, was admittedly completely unaware of the appeal filed in his name and on his behalf. The appeal was neither signed by him as he went missing before the judgment was passed, nor it was accompanied by any Vakalatnama, authorising the counsel who filed the appeal to prosecute the matter. The counsel submitted that she was the sister of Rakesh and was certain that, had he been available after the impugned judgment had been passed, and he had an occasion to see the impugned judgment, he would certainly have desired to file the appeal.
The High Court in the above context 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 authorizes in that regard. It, therefore, said that the appeal is completely incompetent.
Accordingly, the High Court dismissed the appeal.
Cause Title- Rakesh Kumar Sharma v. Mother Dairy Fruit & Vegetables Pvt. Ltd. (Neutral Citation: 2024:DHC:1375)
Appearance:
Appellant: Advocate K. Kiran
Respondent: Senior Advocate Raj Birbal and Advocate Raavi Birbal.
