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Smt. Bishnupriya Rath Vs. President of Bhanjanagar College, Chatrapur and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 696 of 1981
Judge
Reported inAIR1985Ori108
ActsCode of Civil Procedure (CPC) , 1908 - Sections 99 - Order 9, Rules 5 and 9; Limitation Act, 1963 - Sections 5
AppellantSmt. Bishnupriya Rath
RespondentPresident of Bhanjanagar College, Chatrapur and ors.
Appellant AdvocateL. Rath, Adv.
Respondent AdvocateC.V. Murty, Adv.
DispositionRevision allowed
Cases ReferredSmt. Jamilabai Abdul Kadar v. Shankarlal Gulabchand. If
Excerpt:
.....of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the..........plaintiff/defendant/ mukhtarnama appellant/respondent/petitioner/opposite party in the aforesaid suit/appeal/case do hereby appoint and retain..... advocate (s)/pleader(s) mukhtar(s) to appear for me/us in the above case and to conduct and prosecute or defend the same and all proceedings that may be taken in respect of any application connected with the same, or any decree or order passed therein including all applications for return of documents or receipt of any monies that may be payable to me/us in the said case and also in applications for review and in appeals. dated the 19 signature of the executant(s).' rule 4(a) provides that no vakil or pleader without accepting in writing the vakalatnama shall act in any case. in other words, if a vakalatnama in the prescribed form is.....
Judgment:
ORDER

K.P. Mohapatra, J.

1. In this revision the petitioner who is plaintiff in T. S. No. 74 of 1969 of the Court of Munsif, Bhanjanagar has challenged the order passed by the learned Subordinate Judge, Aska in Misc. Appeal No. 9 of 1978 confirming the order passed by the Munsif, Bhanjanagar rejecting the petition under Order 9, Rule 9 of the Civil P. C. (hereinafter referred to as the 'Code').

2. The facts in brief may be stated. Title Suit No. 31 of 1970 instituted by the petitioner against the opposite parties was posted for hearing on 16-12-1976. On that day a petition for adjournment was filed on the ground that the petitioner as also her son, Debi Prasad, who was looking after the suit, were lying ill and were unable to appear in the suit for the purpose of hearing. The time petition was rejected and later the suit was dismissed for default. The petitioner filed a petition under Order 9, Rule 9 of the Code which was registered as M. J. C. No. 1 of 1977. In the said petition it was stated that on account of illness the petitioner, as well as, her son Debi Prasad could not appear arid as there was sufficient cause for non-appearance, the suit should be restored. The petition was resisted by the opposite parties on the grounds that neither the petitioner nor her son, Debi Prasad was ill and in the absence of sufficient cause for non-appearance the suit could not be restored. After hearing both parties the learned Munsif refused to restore the suit because the petition under Order 9, Rule 9 of the Code was not presented according to law by the petitioner and sufficient cause was not shown for her non-appearance. On appeal the learned Subordinate Judge, Aska confirmed the aforesaid findings and further held that the appeal was barred by limitation.

3. The following points arise for consideration :

i) Whether the appeal before the learned Subordinate Judge was barred by limitation;

ii) Whether the petition under Order 9, Rule 9 of the Code was presented according to law, and

iii) Whether there was sufficient cause for non-appearance of the petitioner on the date of hearing of the suit,

4. So far as the first point is concerned, the learned Subordinate Judge on the basis of oral and documentary evidence adduced before him held that although the order of the learned Munsif refusing to restore the suit was passed on 4-5-1978, the petitioner was lying ill for the period from 5-5-1978 up to 26-6-1978. She obtained certified copy on 27-6-1978 and preferred the appeal on 28-6-1978. On the aforesaid finding alone he ought to have held that on account of illness the petitioner was prevented from obtaining certified copy of the order passed by the learned Munsif. But on some other unsupportable grounds, such as, her son could have applied for and obtained certified copy of the said order, he refused to condone delay. On consideration of the facts brought into the record arid on acceptance of the finding recorded by the learned Subordinate Judge, I hold that this was a fit case in which the petition under Section 5 of the Limitation Act should have been allowed. Accordingly delay in preferring the appeal before the learned Subordinate Judge is hereby condoned.

5. The second point is technical in nature. The petition under Order 9, Rule 9 of the Code was not signed bv the petitioner, but by her son Debi Prasad, who appended a verification thereto stating that he was looking after the suit on behalf of his mother. There was no special authority or power-of-attorney in his favour. In view of the above, both the Courts below came to hold that the petition was not presented according to law.

6. The petition under Order 9, Rule 9 was signed by the petitioner's Advocate Mr. B. Das. Mr. L. Rath, learned counsel appearing for the petitioner, contended that in the facts and circumstances of the case the petition signed by the petitioner's Advocate Mr. B. Das was presented in Court according to law. There being no technical defect as pointed out by the Courts below, the petition for restoration could not be thrown out on the ground of mere technicality. If there be any defect in presentation of the petition, it was a mere irregularity, but not totally illegal.

According to Order 4, Rule 1, a suit is instituted by presenting a plaint to the Court. Every plaint shall comply with the rules contained in Orders 6 and 7. According to Order 6, Rule 14, a plaint is required to be signed by the party and his pleader. There is no such equivalent provision in Order 9, Rule 9. In other words, a petition for restoration under Order 9, Rule 9 is not required to be signed by the petitioner. It is also not required to be verified by the party as a plaint is required to be verified under Order 6, Rule 15.

Rule 1 at Chapter IV, Part 7 at page 204 of the General Rules and Circular Orders (Civil) Volume I has prescribed the form of vakalatnama to be presented by the parties in Court. The relevant portion of the vakalatnama is quoted below.

'Know all men by these presents, that by this Vakalatnama I/we plaintiff/defendant/

Mukhtarnama

appellant/respondent/petitioner/opposite party in the aforesaid suit/appeal/case do hereby appoint and retain..... advocate (s)/Pleader(s) Mukhtar(s) to appear for me/us in the above case and to conduct and prosecute or defend the same and all proceedings that may be taken in respect of any application connected with the same, or any decree or order passed therein including all applications for return of documents or receipt of any monies that may be payable to me/us in the said case and also in applications for review and in appeals.

Dated the 19 Signature of the Executant(s).'

Rule 4(a) provides that no vakil or pleader without accepting in writing the vakalatnama shall act in any case. In other words, if a vakalatnama in the prescribed form is presented by an Advocate he can act for the party he represents. Such authority to act, however, is subject to exceptions provided in Rules 6 and 7 for which special authority to receive sums and admit a compromise filed by an advocate is necessary. Mr. B. Das, an Advocate of Aska accepted the vakalatnama duly executed by the petitioner in the following form :

'I/Srimati Bishnu Priya Rath Plaintiff, Defendant, Applicant, Petitioner, Opppsite party, Appellant respondent in the aforesaid suit, case, appeal do hereby appoint and retain Shri B. Das, Advocate, Aska Advocate/Pleader, Mukhtar to appear for me/us in the above case and to conduct & prosecute or defend the same and all proceedings that may be taken in respect of any application connected with the same or any decree or order passed therein including all application for return of documents or receipt of any amount of money that may be payable to me/us in the said case also in applications for review and appeals.

Dated the 6-12-1969.

Ds. Bishnu Priya Rath

Signature of executant'

The contents of the prescribed form and the vakalatnama executed by the petitioner in favour of Mr. B. Das will show that they are almost identical. On execution of the vakalatnama the petitioner authorised her Advocate Mr. B. Das to conduct in other words to act for her in the suit and the proceedings arising therefrom within the meaning of Rule 4 of Chapter IV, Part 7 at page 204 of the General Rules and Circular Orders (Civil) Vol. I.

According to Order 3, Rule 4 of the Code, 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 recognised agent or by some other person duly authorised by or under a power-of-attorney to make such appointment. In this case as already referred to above the petitioner appointed Mr. B. Das, Advocate of Aska to act on her behalf in the suit and proceedings arising therefrom within the meaning of Order 3. Rule 4. In accordance with such authority, Mr. B. Das acted in the proceeding by signing and presenting the petition for restoration. He did so for the benefit of and in order to protect the interest of the petitioner. No objection could be taken to such a petition for presentation of which the petitioner had implied consent. The aforesaid view is supported by authorities. In a Full Bench decision reported in AIR 1968 Ker 213, Chengan Souri Nayakam v. A. N. Menon, it was held that an Advocate in India has inherent authority to enter into a compromise on behalf of his client and the compromise so entered into would be binding on him. The implied authority is an actual authority and not an appendage to his office or dignity added by the Court to the status of the Advocate. Therefore, even though the vakalatnama did not expressly authorise a counsel to compromise the suit or confess judgment, if the Court was satisfied that there was no express prohibition in doing so, it had to assume that counsel had implied authority to compromise an action or confess judgment. This was the view taken in an extreme case. An identical view appears to have been taken is two decisions of the Supreme Court reported in AIR 1975 SC 1632, Employers in relation to Monoharbahal Colliery Calcutta v. K. N. Mishra and AIR 1975 SC 2202, Smt. Jamilabai Abdul Kadar v. Shankarlal Gulabchand. If by virtue of a vakalatnama without having any special authority an Advocate could compromise a cause and admit the same in Court on behalf of the party he represents, I see no reason why an Advocate in whose favour a vakalatnama has been duly executed in accordance with rules prescribed by the High Court cannot act and present a petition under Order 9, Rule 9 of the Code duly signed by him on behalf of the party he represents.

7. In view of the above and in disagreement with the Courts below, I hold that Mr. B. Das. Advocate for the petitioner was authorised to act on her behalf in the suit and the proceedings arising therefrom. Therefore, the petition under Order 9, Rule 9 signed and presented by him cannot be said as being not in accordance with law.

8. With regard to the third point relating to sufficiency of the cause shown for restoration of the suit it is to be noted that on 16-12-1976 the Advocate for the petitioner filed an adjournment petition on the grounds that she was ill, some documents taken back by her husband, who in the meantime passed away, were not readily traceable and there was a talk of compromise. In the petition under Order 9, Rule 9 it was stated that the petitioner was ill, her son Debi Prasad who was looking after the suit was also ill. In the counter filed by the opposite parties, though there was a general denial, it was not specifically stated that the petitioner and her son, Debi Prasad were not in fact ill on the date of hearing of the suit. The petitioner examined her son, Debi Prasad who stated that he was looking after the suit on behalf of his mother who had recently become a widow. He was ill on 16-12-1976. In cross-examination he denied to have produced any medical certificate showing illness of his mother. The opposite parties did not adduce any evidence in order to counter the evidence of Debi Prasad. The evidence adduced by the petitioner being one sided and as there was no challenge to the same, there was hardly any scope for the Courts below to disbelieve the same so as to refuse restoration of the suit. On the facts and circumstances of the case and in disagreement with the Courts below, I hold that there was sufficient cause for the petitioner's non-appearance on the date of hearing of the suit. 9. For the foregoing reasons and as the points have been decided in favour of the petitioner, the revision is bound to succeed. Accordingly the orders passed by the Courts below are vacated. The order of dismissal of the suit dt. 16-12-1976 is set aside and the petition under Order 9, Rule 9 of the Code is allowed restoring the suit on payment of costs of Rs. 200/- to the opposite parties in the Court below. The suit being of the year 1969 should be disposed of by the trial Court within four months after receipt of the records under intimation to the Court.


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