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Bachubai Jhirad Vs. Ibrahim Isak Motivala - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Extraordinary Application No. 1 of 1922
Judge
Reported in(1922)24BOMLR744
AppellantBachubai Jhirad
Respondentibrahim Isak Motivala
DispositionApplication allowed
Excerpt:
vakalatnama-pleader-fresh vakalatnama not necessary in an application to set aside ex parte decree-ex parte decree-bombay pleaders' act (xvii of 1920), section 10(3)-civil procedure code (act v of 1908), section 115, order ix, rule 13, order xvii rule 3-bombay high court civil circulars, chap. iv.;it is not necessary for a pleader duly appearing in a case to present a fresh vakalatnama for the purpose of an application to set aside an ex parte decree.;the high court will ordinarily interfere under section 115 of the civil procedure code, whenever it appears that a lower court has refused to hear a party on the merits without just grounds. - - patil'.the learned judge treated the application as one to set aside the ex parte decree ;and it does not appear that he considered that the suit..........as 'for mr. patil'. the learned judge treated the application as one to set aside the ex parte decree ; and it does not appear that he considered that the suit had been heard and disposed of under order xvii, rule 3. but he considered that the application to set aside an ex parte decree was a distinctly separate proceeding, so that even mr. patil could not have made the application without a fresh vakalatnama. accordingly mr. karkhanis could not make the application for mr. patil. the result was that the application was dismissed without being heard on the merits.3. an appeal against the order was filed before the district judge. a question arose whether an appeal lay to that court or to the high court on the ground that the original case in which the application was made to.....
Judgment:

Norman Macleod, C.J.

1. This is an application in revision which involves a very important question of practice. The facts are that the plaintiff brought a suit in the Court of the First Class Subordinate Judge of Thana to eject the defendant. The defendant had instructed a pleader Mr. Patil. When the suit came on for hearing on the 7th July 1921, Mr. Patil was absent, but he had asked another pleader Mr. Karkhanis to attend to the case for him. Mr. Karkhanis asked for an adjournment as he had no instructions, but this was refused and the hearing proceeded ex parte. Although Mr. Karkhanis did not take any part in cross-examining the plaintiff's witnesses when the Judge having heard the evidence was prepared to pass a decree against the defendant, it does appear that Mr. Karkhanis addressed the Court on the question how much time Was to be granted to the defendant for giving up the premises.

2. Thereafter an application was made to restore the suit to the board. The application was made by Mr. Karkhanis who did not file a fresh Vakalatnama but signed the application as 'for Mr. Patil'. The learned Judge treated the application as one to set aside the ex parte decree ; and it does not appear that he considered that the suit had been heard and disposed of under Order XVII, Rule 3. But he considered that the application to set aside an ex parte decree was a distinctly separate proceeding, so that even Mr. Patil could not have made the application without a fresh Vakalatnama. Accordingly Mr. Karkhanis could not make the application for Mr. Patil. The result was that the application was dismissed without being heard on the merits.

3. An appeal against the order was filed before the District Judge. A question arose whether an appeal lay to that Court or to the High Court on the ground that the original case in which the application was made to the First Class Subordinate Judge was a special jurisdiction case. We do not think it necessary to consider that question at present, as we are now dealing in revision with the order of the District Judge dismissing the appeal. The learned District Judge said:

Now an application to set aside a decree is not like an application to execute the decree, but is an entirely new proceeding, outside that of the suit. This is the natural view of the case, and is supported by the authorities cited by the learned Subordinate Judge, especially page 158 of the High Court Manual of Civil Circulars, where it is expressly stated that an application to set aside an ex parts decree is to be included in the proceedings which do not form part of the suit.

4. No doubt Chapter IV of the Manual of Civil Circulars is headed ' Miscellaneous Proceedings requiring judicial inquiry ' and included under para 1 are proceedings on applications under Order IX, Rule 13 to set aside an ex parte decree. It may very well be that for administrative purposes proceedings on such an application may be filed under the heading ' Miscellaneous Proceedings,' but they are none the less proceedings connected with the suit, and whether the suit is restored or not, certainly such proceedings would have to be considered with the proceedings in the suit, if the matter came before a higher Court. We do not think, therefore, that the passage in the Manual of Civil Circulars really decides the question before us.

5. Then Section 10 of the Bombay Pleaders' Act (XVII of 1920) has been referred to, and it is inferred from Sub-section (3), which states that 'where a pleader has filed a Vakalatnama at the original hearing of a proceeding it shall not be necessary for him to obtain a fresh Vakalatnama for the purpose of an application for review of judgment, or of an application under Section 144 or Section 153 of the Code of Civil Procedure of 1908, or under Order XLV in the First Schedule to the said Code, or for the purpose of an appeal under the Letters Patent', that a fresh Vakalatnama is necessary for the purpose of an application to set aside an ex parte decree. Here again we do not think that Section 10(3) is exhaustive, and that it should compel us to decide that if a party or his pleader is late in attending a Court, and his case comes on for hearing in his absence, the pleader, if he appears after the case has been decided, cannot be heard until he has gone back to his client and obtained a fresh Vakalatnama authorizing him to make an application to set aside the ex parte decree. After all these rules with regard to Vakalatnamas are only prescribed in order that if a party does not appear in person, the Court may know that the person appearing on his behalf is competent to appear. It seems to us to be taking an extremely narrow view of the rules with regard to Vakalatnamas to say that the effect of the old Vakalatnama had expired as soon as the ex parte decree had been passed, and that it would be necessary before a pleader could be heard that, he should obtain a fresh one It seems to us, therefore, that in this case the defendant was entitled to have his application for the restoration of the suit to the board which has been dismissed on a technical point heard on its merits.

6. Lastly, it has been argued that the case does not come within 115, Civil Procedure Code. It seems to us that whenever we are of opinion that the Court below has refused to hear a party on the merits without just grounds, we are entitled to interfere. We, therefore, direct that the application for the restoration of the suit to the board should be heard on its merits by the Subordinate Judge. We think that plaintiffs should have an opportunity of arguing before the Subordinate Judge that the opinion he has expressed in his previous judgment that the suit had been decided ex parte was wrong. Costs of the application will abide the result of the application before the Subordinate Judge.


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