Hari Kishan Shah vs Tilak Rai Bhasin

Mian Jalaluddin, J.—This is an application for restoration of the suit No. 4 of 1970 entitled Mohant Hari Kishan Shah v. Shri T. R. Bhasin

that was dismissed for default of appearance of the plaintiff on 14-7-1970.

In this application Shri O. N. Tikku Advocate for the petitioner has averred that the plaintiff was at Jammu and he himself had gone to Delhi in

connection with some professional work. He had asked Shri R. N. Kaul Advocate to appear for him on the said date. But Shri R. N. Kaul, it

appears, was not available at the moment the case was called as he had gone to Airport to be present at the reception organised in connection with

the arrival of the Prime Minister on that date. On his return from the reception he found that the suit had been dismissed for default. Mr. Tikku

Advocate returned from Delhi on 15th of July 1970. It is further averred that the plaintiff's counsel was told that the power of attorney on the file

did not bear his signature, but there is no rule prescribing the acceptance of power of attorney in writing by the Advocate for the party if the

Advocate filed the power of attorney in the court and acted on his behalf. In such circumstances, his acting on behalf of the party would amount to

acceptance in law. However to avoid the controversy the counsel secured another power of attorney from the plaintiff who is at Jammu. The said

power of attorney has been filed along with the application for restoration. It is prayed that the application for restoration be allowed and the suit

be readmitted on its original number.

In his objections the respondent has contended that the application for restoration is not legally maintainable and that no sufficient cause for

restoration of the suit is made out and in fact the averments made in the application cannot legally be deemed to constitute a sufficient cause. There

was no validly executed power of attorney duly accepted by the plaintiff's counsel, therefore all the proceedings in the suit are void in law, and right

from the presentation of the suit upto the date of the passing of the order of dismissal for default the proceedings cannot be deemed to have been

properly conducted by a duly authorised counsel as envisaged by Order 3 Rule 4 C. P. C. The subsequent filing of power of attorney by the

plaintiff's counsel in the application for restoration could not in law validate the proceedings upto the date of the passing of the order of dismissal

and any cause shown for non-appearance by Shri O. N. Tikku Advocate could not be deemed to be a sufficient cause for default in appearance of

the plaintiff. In the end the respondent prayed for the dismissal of the application.

In support of his application Shri O. N. Tikku Advocate appeared as his witness. Shri T. R. Bhasin the respondent put himself in the witness

box in order to rebut the statement of the plaintiff's counsel.

Shri O. N. Tikku stated that on the day when the case was dismissed for default of appearance of the plaintiff he was in Delhi. When he reached

Srinagar he came to know about the dismissal of the case. He had already instructed Shri R. N. Kaul Advocate to appear on his behalf in the case.

But because of the fact that he was engaged in connection with the reception of the Prime Minister at the Srinagar Airport therefore, he too could

not put in his appearance in the case. About the plaintiff he said that he was at Jammu. Shri Tilak Rai Bhasin the respondent stated that on 14th of

July 1970 the Prime Minister of India did come to Srinagar but the court work commenced after she had arrived as all the Judges of the High

Court had gone to receive her. When, however, the work started in the High Court Shri R. N. Kaul was present in the High Court. So far as the

witness remembered this Bench pronounced judgment in a certain case and Mr. R. N. Kaul was present immediately before the present case was

called. The witness went on to say that Shri O. N. Tikku Advocate was not present at Srinagar on 14-7-1970 and that he arrived in Srinagar on

15-7-1970. Even if Shri O. N. Tikku would have been present on the said date he could not validly represent the plaintiff because he had not

signed the power of attorney. Therefore no other lawyer could represent the plaintiff's counsel in the case. In cross-examination the witness stated

that he did not know whether the plaintiff was engaged in Jammu on 14-7-1970 in connection with some other litigation. Court work on 14th of

July commenced at 11 A. M.

I have heard the arguments in the case.

The main propositions canvassed before me on behalf of respdt. in this application are:-

1) That no sufficient cause has been disclosed in the application for the non-appearance of the plaintiff on the date when the case was dismissed for

default.

2) Mr. O. N. Tikku Advocate who has made the application for restoration was not a validly engaged lawyer of the plaintiff as he had not signed

the power of attorney, therefore any cause for his non-appearance would not be deemed sufficient for the absence of the plaintiff.

3) Even if Mr. Tikku be deemed to have been engaged in the case still his absence in the case would not be a reason and sufficient cause for the

absence of the plaintiff as it is not the counsel but the party who has to disclose sufficient cause for his non-appearance.

During the course of arguments the provisions of Order 3 Rule 4 C. P. C. were also referred to and discussed. In support of various

submissions made by Shri K. N. Raina counsel for the respondent reliance was placed on AIR 1929 8 (Nagpur) , AIR 1927 Lah 719 (1),

Abdullabhai Ebrahimji Vs. Isabhai Najmuddin, . AIR 1957 Rai 11 and Arjun Singh Vs. Mohindra Kumar and Others, . As against this Shri O. N.

Tikku learned counsel for the applicant has submitted that the present application for restoration is a bona fide application for restoration of the

suit. The plaintiff himself was in Jammu and therefore he could not appear on 14th of July to attend his case. He (the Advocate) had gone to Delhi

in connection with professional work and he had instructed Shri R. N. Kaul to put in his appearance on his behalf, but because of the fact that the

Prime Minister had to come on that day to Srinagar, the former was engaged in the reception at the Airport and therefore he too was prevented

from making his appearance in the court on that date. Absence was not wilful. There was bona fide cause for the non-appearance of the plaintiff

and his counsel on the said day.

As regards the proposition enunciated by the respondent that the Advocate of the plaintiff was not a validly engaged lawyer and therefore the

fact of his non-appearance in the case was of no consequence because he was not a recognized agent of the plaintiff, learned counsel has

submitted that even though the power of attorney was not inadvertently signed by the Advocate for the plaintiff that would not invalidate the

proceedings taken in the case and that would not make the Advocate defunct for the purpose of the case. This mistake could be cured and it has

indeed been cured by his subsequently filing a fresh power of attorney. In this connection reliance is placed on Raghunath Devi v. Administrator,

Srinagar Municipality, AIR 1962 J & K 83. .

Again it is submitted that there is no force in the contention raised by the respondent that it is the party and party alone who has to disclose

sufficient cause for non-appearance. The cause of non-appearance of the counsel is relevant and would be sufficient to restore the original

proceedings.

In the end it is submitted that in the application sufficient cause has been shown for the non-appearance of the plaintiff as well as for the non-

appearance of his counsel and this would justify the restoration of the suit. The following authorities have been cited in support of what has been

argued by the plaintiff's counsel:-

AIR 1955 Nagpur 276, Sohanlal and Another Vs. Devachand, , Manibala Dassi Vs. Tamizuddin Saha and Another, . and Tulsiram Bhagwandas

Vs. Sitaram Srigopal, .

It is true that power of attorney appended with the plaint is not signed by the Advocate. The question however, for consideration is, will this

invalidate the proceedings taken in the case and disentitle the Advocate from making the application for restoration. and whether even if a good

cause is shown by the Advocate for his non-appearance on the material date, it would render the application for restoration not in accordance with

law. Somewhat similar question came up for consideration before this court in a case which is reported as Raghunath Devi v. Administrator,

Srinagar Municipality, AIR 1962 J & K 83. . That was a case where a suit was dismissed for default under the provisions of Order 9 Rule 3 C. P.

C. and an application for restoration was presented by the Advocate who signed and filed it. The application was resisted on the ground that the

Advocate did not hold a Vakalatnama of the plaintiff. The Court after discussing the provisions of Order 3 R. 4 in detail observed that even if the

Advocate had not obtained a Vakalatnama from the plaintiff before he filed an application for restoration it was only a curable irregularity which

was cured by the subsequent filing of a proper power of attorney by him. This court further observed that Rule 4 of Order 3 is only a directory

provision it is sufficient if it is complied with substantially. Substantial compliance of Order 3 Rule 4 is achieved in a case where the pleader makes

an application with the consent of a party and subsequently files a formal Vakalatnama duly executed by that party. In this respect there is no

difference between a case where an application is signed by a counsel without a Vakalatnama and a case where a counsel without a vakalatnama

merely presents a petition which is duly signed by the party. For, in both the cases the counsel does 'act'. In the instant case we find that the

Advocate for the applicant had not signed the power of attorney when he presented the plaint but he conducted the proceedings thereafter. He

has, however, filed a fresh power of attorney along with the application for restoration. In my opinion relying upon the observations made by this

Court in Raghunath Devi v. Administrator, Srinagar Municipality, AIR 1962 J & K 83. the defect is not material because the counsel has acted in

pursuance of the power of attorney which though not signed by him would not make his acting in the case invalid and incompetent.

Again the observations made in AIR 1955 276 (Nagpur) are relevant which are as follow:-

Though appointed by the party, failure by the pleader to sign the vakalatnama in token of acceptance does not mean that the party did not intend to

appoint the pleader to act for him or that the pleader did not accept the appointment. If after such vakalatnama is filed in Court, the pleader acts

for the party, then his appointment may be treated as accepted by the pleader. For now under Order 3 Rule 4 (2) acceptance before filing the

vakalatnama is not necessary.

I, therefore, see no force in the contention raised before me regarding this aspect of the matter.

The next question to be considered is whether a party has to prove sufficient cause for its non-appearance or his pleader. Chief Justice

Wanchoo of Rajasthan High Court as His Lordship then was and Modi J. considered this question in Sohanlal and Another Vs. Devachand, . It

was held that:-

Generally speaking the presence of counsel for a party is equivalent to that of the party himself according to the scheme envisaged in Our CPC

subject to one limitation, namely, where counsel for a party pleads no instructions to Court, his mere physical presence is of no avail.

Where therefore, the counsel has failed to put in appearance on the date of hearing for some reason and the suit has been dismissed for his default,

what is reasonably necessary to be done as a condition precedent to the restoration of the suit or appeal is that he should satisfy the court that

there was sufficient cause for his non-appearance when the suit or appeal was called for hearing. The party concerned whether he be plaintiff or

defendant or appellant or respondent who has already arranged for his due representation in court through a duly instructed pleader, need not be

called upon also to assign sufficient reason for his own absence at the hearing.

In Abdullabhai Ebrahimji Vs. Isabhai Najmuddin, it was observed by Blackwell J. that where the case is called and counsel for the party is not

present by reason of his being engaged in another court, though this is not a sufficient cause yet there is an inherent power vested in court to

prevent injustice being done and the court should under such circumstances set aside the ex parte decree on payment of costs of the other side.

The authority AIR 1927 Lah 791 (1) cited at the bar has got no application to the facts of the present case because that was a case where the

pleader was engaged in some other case and moreover he did not appear. The suit was not restored. But this is a very brief judgment. In a few

Lines on which the case law on the subject has not been discussed.

I am, therefore, inclined to hold that if the counsel of a party proves by sufficient cause his non-appearance in the case dismissed for his default

of appearance, the court need not call upon the party to assign sufficient cause for its non-appearance at the hearing. Therefore if Mr. O. N. Tikku

establishes good cause for his non-appearance that would dispense with the proof to be furnished by the plaintiff to prove his failure to attend the

court.

The third question is whether sufficient cause in the case has been established Mr. O. N. Tikku has put himself in the witness box and he has

stated on oath that on the day when the case was called for hearing he had gone to Delhi in connection with some professional work and that he

had requested Mr. R. N. Kaul to put in his appearance in his stead. But Mr. R. N. Kaul also did not appear before the court because of his

engagement elsewhere with the result that the case was dismissed for default. On the other hand the respondent has come up with a statement that

it is true that Shri O. N. Tikku was not present on 14th of July in the court, but Shri R. N. Kaul was present and he was present immediately

before the case was called, but he had left the court. This, however, proves that R. N. Kaul was present on the said date in the court. Shri R. N.

Kaul has not been put in in the witness box by the applicant in the case.

The question to be considered, however, is whether wilful non-appearance of Shri R. N. Kaul would disentitle the applicant from seeking the

necessary relief in the application for restoration. If Shri R. N. Kaul did not act according to the instructions given to him by Shri O. N. Tikku for

that the plaintiff cannot be punished. Here before us we are not to consider the cause for non-appearance of Shri R. N. Kaul but of Shri Onkar

Nath Tikku the advocate for the plaintiff applicant. In my opinion judging from his statement Mr. O. N. Tikku has shown that he was prevented

from putting his appearance in the case on the date fixed because of his having gone to Delhi. It is true that lawyers owe a double duty to their

clients and to the court and before they leave the Station they must make all necessary arrangements to ensure that somebody is present on their

behalf who would put in appearance on their behalf.

Taking all the circumstances of the case into consideration I am of the view that the counsel for the plaintiff has shown sufficient cause for his

non-appearance on the date fixed in the case. But the applicant must pay substantial costs because of lukewarm way in which the case appears to

have been conducted on his side.

I, therefore, allow this application for restoration. The case will be re-admitted to its original number on payment of Rs. 150.00 as costs. Costs

will be paid or deposited in court within two weeks (l4 days) from today failing which the application shall be deemed to have been dismissed.

Case to come up after two weeks.

Order accordingly.