Turlapati Nagabhushanam and others vs Kancheti Narasimhayya and others

Madhusudan Rao

The appellants herein are the plaintiffs in O.S. No. 100 of 1969 on the file of the Subordinate Judge''s Court, Narasaraopet; As the appellants and their Advocate were absent, the suit was dismissed for default on 12th July, 1973. The Advocate who was engaged by the appellants to prosecute the the suit and who filed a vakalatnama in the suit, filed a petition under Order 9, rule 9, Civil Procedure Code, for setting aside the default order. The lower Court dismissed the application on the ground that the petition is not maintainable for want of a fresh vakalath. This appeal is directed against the said order of dismissal. The simple question for decision in this appeal is whether after the dismissal of a suit for default, a fresh vakalathnama is necessary to be filed by the Advocate engaged by the plaintiffs in the suit for instituting a petition under Order 9, rule 9, Civil Procedure Code.

Answer to the question is directly available in Order 3, rule 4, sub-rule (2) Civil Procedure Code, which reads :

Every such appointment shall be filed in the Court and shall 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.

The words ''until all proceedings in the suit are ended so far as regards the client'' are wide enough to cover the proceedings by way of an application for restoration of a suit dismissed for default. All the proceedings in the suit do not come to an end so far as regards the client merely by a dismissal of a suit for default as such order of dismissal may be set aside for valid reasons on an application and the case may be restored for trial. The vakalathnama filed by the appellants Advocate in the suit is admittedly in the usual terms giving the Advocate all power to prosecute the suit and all proceedings that might be taken in respect of any application connected with the suit and also to apply for execution of the decree which might be passed in the suit. There is no clause in the vakalath indicating any limitation on the powers of the Advocate necessarily implied in the vakalathnama for the proper conduct of the case. Mere dismissal of a suit for default does not put an end to the proceedings in the suit as regards, the plaintiff.

The proceedings can still be continued under the relevant provision of the Law and the Advocate engaged for the prosecution of the suit will have every power to continue the proceedings until it is finally decided in the Court concerned. It is manifest that if the default order is set aside, the suit will be restored to its original number and will not be treated as fresh suit requiring a fresh vakalathnama. It would indeed be anomalous if a fresh or special vakalath is required for the limited purpose of getting the suit restored to file.

Where the vakalathanama filed by an advocate for the plaintiff in the suit is in the usual terms without any limitation of his powers such Advocate would have a right to do everything that is necessary for the proper conduct of a case and if the case is dismissed for default, there can be little doubt that he has an implied authority to file an application for setting aside the default order. The impugned order passed by the learned Subordinate Judge is unsustainable and is accordingly set aside. This appeal is therefore allowed and the appellant''s application under Order 9, rule 9, Civil Procedure Code, shall be disposed of on merits. No costs.