Delhi HC disapproves third-party appeal for missing person

NEW DELHI: The Delhi High Court has come across a ''peculiar case'' where an appeal was filed on behalf of an unsuccessful litigant who was completely unaware of the appeal as he went missing before the passing of a judgment by a trial court here.

The high court noted that the appeal, challenging a judgment passed by the trial court, and all accompanying affidavits and documents bear the signature only of the man's sister and were neither signed by him nor accompanied by a 'vakalatnama' authorising her to prosecute the matter on his behalf.

It dismissed the appeal, holding it to be ''completely incompetent''.

The high court noted that advocate K Kiran, the man's sister, relies on a 'vakalatnama' signed by the man Rakesh Kumar Sharma at the stage when the matter was pending before the trial court.

''The fact remains, however, that Rakesh Kumar Sharma went missing even prior to the passing of the judgment. The present appeal has, therefore, not been filed on instructions given by Rakesh Kumar Sharma,'' Justice C Hari Shankar said in an order passed on Wednesday while terming the appeal to be a ''truly peculiar case''.

Sharma had lost his termination case from the trial court and an appeal was filed by his sister in the high court purportedly on his behalf.

As per the facts of the matter, an order was passed by an additional district judge on November 28, 2018, which was in favour of Mother Dairy Fruit and Vegetables Pvt Ltd and against Sharma.

In 2019, an appeal was filed in the high court purportedly challenging the trial court order and the appeal mentioned Sharma as the appellant. Senior advocate Raj Birbal and lawyer Raavi Birbal, representing Mother Dairy Fruit and Vegetables Pvt Ltd, opposed the petition.

The high court noted that Sharma went missing on September 27, 2018, even before the judgment was reserved by the trial court and he never even had an opportunity to see the verdict, much less take a conscious decision to appeal against it.

Advocate K Kiran submitted that as the sister of Sharma, she is certain that had he been available after the November 28, 2018, judgment was passed and had an occasion to see it, he would certainly have desired to file the present appeal.

To the court's query as to how she could be sure that her brother, had he been there to see the decision when it was rendered, would have desired to appeal against it, her response was, ''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,'' Justice Shankar said.

The high court said 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 authorisation 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,'' it said.

The high court said 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.