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Mt. Jwala Devi Vs. Bhrigunath Sahai - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1944All238
AppellantMt. Jwala Devi
RespondentBhrigunath Sahai
Excerpt:
- .....to an end and in case it was necessary to file an application to set aside an ex parte decree a fresh vakalatnama was necessary inasmuch as the application to set aside the ex parte decree must be deemed to be an independent proceeding. he, therefore, dismissed the application and refused to consider it on the merits. it is against that order that the defendant has filed this civil revision under section 25, small cause courts act.2. the learned counsel for the defendant applicant urges that the lower court took an. entirely erroneous view of law and erred in holding that the power of the vakil lapsed with the decision of the suit and an application for restoration needed a fresh vakalatnama or an authority.3. the learned counsel for the applicant has relied on two cases, one reported.....
Judgment:
ORDER

Malik, J.

1. This is a defendant's application in revision. The plaintiff had filed a suit for recovery of certain money alleged to be due from the defendant. The suit was decreed ex parte under circumstances which it is not necessary for me to set out here. The defendant filed an application for setting aside the ex parte decree. The application for setting aside the ex parte decree, however, was signed by the learned vakil who had been appearing, for the defendant in the suit. When this application came up before the learned Judge of the Court of Small Causes at Cawnpore he held that the application was not signed or presented by a vakil who had been properly authorized and therefore the application could not be considered at all. The point of view of the learned Judge was that with the decision of the suit the authority of the lawyer under the vakalathama given to him came to an end and in case it was necessary to file an application to set aside an ex parte decree a fresh vakalatnama was necessary inasmuch as the application to set aside the ex parte decree must be deemed to be an independent proceeding. He, therefore, dismissed the application and refused to consider it on the merits. It is against that order that the defendant has filed this civil revision under Section 25, Small Cause Courts Act.

2. The learned Counsel for the defendant applicant urges that the lower Court took an. entirely erroneous view of law and erred in holding that the power of the vakil lapsed with the decision of the suit and an application for restoration needed a fresh vakalatnama or an authority.

3. The learned Counsel for the applicant has relied on two cases, one reported in Raghunath Singh v. Raghubir Sahai ('92) 15 All. 55. In that case an appeal had been dismissed for default. An application was then filed by the vakil for setting aside the order dismissing the appeal for default but he did not file a fresh vakalatnama. It was urged on behalf of the respondent opposite party that a fresh vakalatnama was necessary. The Court in rejecting this contention held that where a vakil had been duly empowered by a vakalatnama drawn in the customary form to file and conduct an appeal and that appeal had been dismissed for default the vakil was competent without filing a fresh vakalatnama to present an application for the restoration of the said appeal. The matter was also considered by the Lahore High Court in a case reported in Abdul Aziz v. Punjab National Bank, Ltd. ('29) 16 A.I.R. 1929 Lah. 96 at p. 98. In that case a suit had been dismissed for default and an application for restoration was filed on behalf of the plaintiff by the same vakil but without a fresh vakalatnama. A plea was taken that a fresh vakalatnama was necessary. The Lahore High Court overruled that contention and held that it must be held that the vakil who was engaged under a power of attorney or a vakalatnama in the usual terms had authority to do all that was necessary for the proper conduct of the case and when the case was dismissed for default it must be assumed that it was a part of the implied authority of the vakil to apply for restoration unless there was something in the power of attorney to limit such right.

4. In this particular case I have looked into the language of the vakalatnama filed by the learned vakil for the defendant and it is in the usual terms giving the vakil the power to apply for execution of the decree which would necessarily be a stage after the decision of the case, and in the absence of any expression indicating limitation on his powers I must hold that it was necessarily implied that the vakil would have the right to do everything that was necessary for the proper conduct of the case, and if the case had been decided ex parte it must be held that there was an implied authority given to the vakil to have that order set aside and the case heard on the merits.

5. In the view that I have taken I think the application for restoration was wrongly dismissed by the learned Judge of the Court of Small Causes. I, therefore, set aside his order and direct that the application be heard on the merits. The costs of this application will abide the result.


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