Janghir Singh vs Smt. Tara devi and another

Ashok Bhan, J.—One Dharam Singh deceased at the time of his death left behind seven successons i.e. three sons, three daughters and a widow Tara Devi widow and Bimlesh Kumari one of the daughters (hereinafter referred to as the Plaintiff Respondents) filed a suit against Jangbir Singh and others i.e. the remaining two sons and two daughters for declaration that they are owners of the property in equal shares left behind Dharam Singh deceased.

Suit filed by the Plaintiff Respondent was dismissed on 9-11-1989 on the statement of the counsel for the Plaintiffs that he bad no instructions to prosecute the case:

Plaintiff-Respondents filed an application under Order 9 Rule 9 read with Section 151 of the CPC (hereinafter referred to as the Code) for restoration of their case on 22-5-1990. This application was dismissed in default and thereafter another application was filed on 16-7-1990 for restoration. The case was taken up on 29-11-1990 on which date Vikram Singh Advocate appearing for Defendant-Respondent No. 1 and Respondent No. 3 appealed in person and made a statement that they have no objection to the restoration of the suit. On the basis of this statement of Vikram Singh Advocate for Defendant-Respondent No. 1 and Ranbir Singh, the trial Court ordered the suit to be restored and registered at its old number. Jangbir Singh Defendant No. 1 has come up in revision to this Court.

Order 3 Rule 4(2) of the Code reads as under:

Appointment of Pleader:- (1)No pleader shall Act for any person in any Court unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized by or under a power of attorney to make such appointment Every such appointment shall be (filed in Court and shall, for the purpose of Sub-rule (1), be) deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client.

It was argued that Shri Vikram Singh was the counsel for the Defendant-Petitioner in the main suit and the proceedings in this suit came to an end on the day the same was dismissed for non prosecution by the trial Court on 9-11-1989, that no notice had been served on Defendant Petitioner No 1 by the trial Court for restoration of the suit but instead a notices was served on Shri Vikram Singh, Advocate on whose statement the suit was ordered to be restored, that Vikram Singh, Advocate, had no authority to appear on behalf of Defendant-Petitioner after a lapse of one year on the day he made the statement that he had no objection to the restoration of the suit.

As against this, the submission of learned Counsel for the Respondents is that in an application filed by the Plaintiff Respondents to get the suit rescored notice could either be served on Defendant-Petitioner or his counsel and that no fresh power of attorney was required to be executed by the Defendant-Petitioner in favour of Shri Vikram Singh Advocate for getting the suit restored which had been dismissed in default as the application for getting the suit restored would be a proceeding in the suit within the meaning of Order 3 Rule 4(2) ibid. I find force in the submission of learned Counsel for the Respondents. The authority of the Advocate of the Defendant did not terminate on the dismissal of the suit and, therefore, the service of the notice of the application for restoration of the suit on him was a valid notice and no fresh notice was required to be served on the Defendant nor a fresh power of a attorney was required to be given to the Advocate to contest the application. An application for restoration of a suit dismissed for default is a part of the proceedings in the suit.

For the reasons recorded above, I find no force in this revision petition and dismiss the same with no order as to costs.

Parties through their counsel are directed to appear before the trial Court on 23-4-1991.