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Bijli Cotton Mills (Pvt.) Ltd. Vs. Chhaganmal Bastimal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 133 of 1975
Judge
Reported inAIR1982All183
ActsCode of Civil Procedure (CPC) , 1908 - Order 3, Rule 4(2)
AppellantBijli Cotton Mills (Pvt.) Ltd.
RespondentChhaganmal Bastimal and ors.
Advocates:V.K. Barman, Adv.
DispositionAppeal allowed
Excerpt:
.....bhajan lal gupta stated that the managing director of the company sri ram babu lal had gone to bombay in connection with his business about 10 days before the date fixed in the case under the belief that he would be able to return back well in..........the counsel for the parties, the court stayed the hearing of the suit. the defendants-respondents' suit filed at ajmer was decided finally on 25-5-1971; thereafter proceedings in the suit before the civil judge, aligarh proceeded. the suit was fixed for final bearing on several dates but for one reason or the other, it could not be taken up. ultimately on 19-8-1974 the suit was taken up for final hearing. the plaintiff's counsel appeared and made a request for adjournment of the case. the court refused to adjourn the hearing whereupon the plaintiff's counsel sri s. p. jaiswal, advocate, stated that he had no instructions, the court dismissed the plaintiff's suit under order ix, rul e8 of the civil p. c.4. the plaintiff filed an application for setting aside the order dated 19-8-1974 and.....
Judgment:

K.N. Singh, J.

1. This appeal is directed against the order of the Additional Civil Judge, Aligarh dismissing toe appellant's application under Order IX, Rul e9 of the Civil P. C.

2. M/s. Bijli Cotton Mills (Private) Ltd. carrying on business at Hathras in district Aligarh, filed a suit No. 55 of 1967 against M/s. Chhaganmal Bastimal, a partnership firm, carrying on business at Mewar Bazar, Beawar, District Ajmer (Rajasthan), Along with the defendant firm Sri Mishri Lal and Sri Gheesu Lal, the partners of the firm, were also arrayed as defendants. The plaintiff claimed relief for a decree of Rupees 4,85,000/- against the defendants.

2-A. The defendants appeared, filed written statement and contested the suit denying the liability.

3. On 8-7-1970 issues were framed, but the suit could not proceed for one reason or the other. On 6-2-1971 counsel for both the parties made a joint statement before the Court that hearing of the suit be stayed till the final decision of the suit No. 47 of 1966, Chhaganmal Bastimal v. Bijli Cotton Mills (Private) Limited pending in the Court of the Additional District Judge, Ajmer. On the statement of the counsel for the parties, the Court stayed the hearing of the suit. The defendants-respondents' suit filed at Ajmer was decided finally on 25-5-1971; thereafter proceedings in the suit before the Civil Judge, Aligarh proceeded. The suit was fixed for final bearing on several dates but for one reason or the other, it could not be taken up. Ultimately on 19-8-1974 the suit was taken up for final hearing. The plaintiff's counsel appeared and made a request for adjournment of the case. The Court refused to adjourn the hearing whereupon the plaintiff's counsel Sri S. P. Jaiswal, Advocate, stated that he had no instructions, the Court dismissed the plaintiff's suit under Order IX, Rul e8 of the Civil P. C.

4. The plaintiff filed an application for setting aside the order dated 19-8-1974 and for restoration of the suit to its original number. The Additional Civil Judge dismissed the application by his order dated 23-11-1974. Hence this appeal.

5. The Court below dismissed the plaintiff's application on two grounds. Firstly, it held that the application made under Order IX, Rul e9 of the Civil P. C. was not maintainable as it was presented by Sri S. P. Jaiswal, Advocate, who had no authority to act on behalf of the plaintiff. Secondly, the plaintiff had failed to give any sufficient reason for his absence. Learned counsel for the appellant has urged that Vakalatnama filed by the plaintiff in favour of Sri S. P. Jaiswal, Advocate, continued to remain in force even after his statement that he had no instructions till it was withdrawn in accordance with the provisions of Order III, Rul 4 of the Civil P. C. Since the authority of Sri Jais-wal had not been withdrawn by the plaintiff and as Sri Jaiswal himself had not terminated his authority in accordance with the provisions of Order III Rul e4 of the Civil P. C, Sri Jaiswal continued to be the plaintiff's counsel and he had authority to present the application for setting aside the order dated 19-8-1974.

6. Order III, Rule 4 of the Civil P. C. provides for appointment of pleader and termination of his authority. Sub-rule (2) lays down that appointment of a pleader 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. Thus, once an Advocate is engaged as a pleader by a client, the authority of the Advocate to represent his client continues to remain in force until it is determined with the leave of the Court in writing signed by the client or the pleader. In the absence of a written termination of the relationship of the client and the pleader, the pleader is not absolved of his duty to appear on behalf of his client. Any state-ments made by him that he had no instructions, does not terminate his authority. Once he has accepted the brief and the client has paid his fee, he continues to represent the client and be responsible for the conduct of the case. He is, no doubt, entitled to terminate his status as a pleader of the client but that cannot be done orally. It must be done in writing with the permission of the Court in the manner laid down by Clause (2) of Rule 4 of Order III.

7. In the instant case Sri S. P. Jaiswal was admittedly a pleader engaged by the plaintiff-appellant. His authority had not been determined by his client and as such he continued to represent him. The statement made by Sri S. P. Jaiswal that he had no instructions, was wholly irrelevant. Sri S. P. Jaiswal could not determine his relationship with his client as a pleader in the manner he attempted to do so and in the eye of law he continued to be the plaintiff's pleader. It is nobody's case that the authority of Sri S. P. Jaiswal was determined before he presented the application on behalf of the plaintiff under Order IX, Rul e9 of the Civil P. C. We are, therefore, of the opinion that the Court below erred in holding that the plaintiff's application was not maintainable as it was not presented by authorised pleader. The Court below further failed to notice that the plaintiff's application was signed not only by his counsel but also by the Managing Director, Sri Ram Babu Lal. In the circumstance it was clear that the application was filed by Sri Jaiswal at the behest of the plaintiff. He impliedly held authority to present the application on behalf of the plaintiff. In our opinion the Court below was not right in rejecting the plaintiff's application on the preliminary ground.

8. The plaintiffs application for restoration was supported by an affidavit filed by its Pairokar Bhajan Lal Gupta. In his affidavit Sri Bhajan Lal Gupta stated that the Managing Director of the Company Sri Ram Babu Lal had gone to Bombay in connection with his business about 10 days before the date fixed in the case under the belief that he would be able to return back well in time. Due to certain unavoidable circumstances, Sri Ram Babu Lal could not return from Bombay to Aligarh and as a result of which on 19-8-1974 he could not be present in Court to give instructions to his counsel. It is noteworthy that no counter-affidavit was filed in reply to this affidavit but an objection was filed by Sri Hukum Chand Jain on behalf of the defendant-respondent without any affidavit in support thereof. No evidence was placed on behalf of the defendants-respondents before the Court below to show that the averment contained in the affidavit of Bhajan Lal Gupta was wrong or incorrect or that the Managing Director was present in Aligarh or Hathras or that he deliberately did not take steps in the suit or that he purposely absented himself. In the absence of any. such material the Court below was not justified in rejecting the averment contained in the affidavit of Bhajan Lal Gupta. The Court below was further not justified in rejecting the affidavit of Bhajan Lal Gupta on the ground that he had stated that the Managing Director was not in Aligarh on the other hand this fact should have been sworn by the Managing Director himself. Many a time Pairokar file affidavit on behalf of party and if some material is. placed before the Court raising doubts about the veracity of the averment contained in the Pairokar's affidavit or if the fact is necessarily within the personal knowledge of the party, in that situation the affidavit of the party may be necessary. There was no such situation in the instant case. Bhajan Lal Gupta's affidavit could not, therefore, be discarded merely on the ground that he was the plaintiff's Pairokar.

9. The Court below further erred in holding that the plaintiff had obtained three adjournments and he was deliberately delaying the trial of the suit. We have gone through the record and perused the order-sheet. We find that the first adjournment was obtained by the plaintiff on 23-7-1973. The second adjournment was granted to the plaintiff on 9-2-1974 on the ground of illness of the plaintiffs counsel and the third adjournment was granted to the plaintiff on 13-5-1974 with the consent of the counsel for the defendants. Apart from these, the plaintiff had not obtained any adjournment. Having regard to these facts and circumstances, it is difficult to uphold the finding that the plaintiff had deliberately delayed the suit. It is noteworthy that the plaintiff has filed the suit for recovery of a sum of more than Rs. 48,000/- and he has paid a heavy amount of court-fee. He is not expected to delay the proceedings specially when a decree has already been passed against him in the suit filed by the defendants at Ajmer.

10. For the reasons stated aboye, we allow the appeal, set aside the orders dated 19-8-1974 and 23-11-1974 and restore the suit to its original number on payment of Rs. 500/- (five hundred only) as costs by plaintiff to defendant-respondents on the date when the case is taken up by the Court below. So far this appeal is concerned, the parties shall bear their own costs.

11. Since the hearing of the suit has been delayed, the office is directed to send back the record of the case at once and the Court below is directed to expedite the hearing of the case.


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