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Pannalal and anr. Vs. Firm Ballaram Basia - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 109 of 1956
Judge
Reported inAIR1957Raj391
ActsCode of Civil Procedure (CPC) , 1908 - Order 3, Rule 4 - Order 9, Rule 9
AppellantPannalal and anr.
RespondentFirm Ballaram Basia
Advocates: D.P. Gupta, Adv.
DispositionRevision dismissed
Cases ReferredOak v. Ma Khim.
Excerpt:
.....effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - umrao lal was not a good service on the defendants......by two affidavits in support of the grounds mentioned in the petition for setting aside (?) restoration. notice was issued to mr. umrao lal, advocate for the defendants, who on 4th may, 1956, wrote on the back of the notice that his power to represent the defendants had come to an end by the order of dismissal of the suit. the court, however, did not agree with the view of mr. umrao lal, considered service on him as sufficient service on the defendants, accepted the affidavits, produced on behalf of the plaintiff, and directed restoration 'by order of 15th may, 1966. the defendants have come in revision.3. it was contended on behalf of the defendants that the order of dismissal of the suit amounted to a termination of the proceedings, and as the authority granted to a lawyer.....
Judgment:
ORDER

Bapna, J.

1. This is a revision against an order of the learned Civil Judge of Alwar, dated 15th May, 1956, allowing an application for restoration of a suit which had been dismissed for default.

2. The plaintiff, after the dismissal Of the suit for default, made an application for its restoration accompanied by two affidavits in support of the grounds mentioned in the petition for setting aside (?) restoration. Notice was issued to Mr. Umrao Lal, Advocate for the defendants, who on 4th May, 1956, wrote on the back of the notice that his power to represent the defendants had come to an end by the order of dismissal of the suit. The Court, however, did not agree with the view of Mr. Umrao Lal, considered service on him as sufficient service on the defendants, accepted the affidavits, produced on behalf of the plaintiff, and directed restoration 'by order of 15th May, 1966. The defendants have come in revision.

3. It was contended on behalf of the defendants that the order of dismissal of the suit amounted to a termination of the proceedings, and as the authority granted to a lawyer terminates with the termination of the proceedings, as mentioned in Order III, Rule 4, Sub-rule (2), C. p. C., the notice served on Mr. Umrao Lal was not a good service on the defendants. The contention Is without force. An application for restoration of a suit dismissed for default is a part of the proceedings in the suit, and on the same reasoning the advocate of the defendant does not require a fresh power to contest the application.

A direct authority is to be found in U Oak v. Ma Khim. AIR 1941 Rang 314 (A), where it has been held that an application to set aside an ex parte decree or dismissal order is part of the proceeding in a suit and so in the same way to oppose or consent to such an application being also a part of the proceeding in a suit, a counsel need not have fresh authority for that Purpose. The view of Mr. Umrao Lal that his authority had terminated by order of dismissal of the suit was not correct. The Court was, therefore, right that the service on Mr. Umrao Lal was a valid service en the defendants.

4. It was next contended that the note of Mr. Umrao Lal should be deemed to be a prayer for withdrawal from the suit, 2nd that prayer also terminated his authority. It may be mentioned that under Order III, Rule 4(2) the determination of the power can only be done with the leave of the Court. In the present case, the notice was served on the 4th of May and the case came on for hearing on the 9th of May, and on that day the Court did not permit Mr. Umrao Lal to withdraw from the suit. On the other hand the Court considered the service on Mr. Umrao Lal to be sufficient.

5. It was argued that even if the lawyer had appeared and stated that he had no instructions, his personal presence would not have amounted to an appearance on behalf of the defendants. This may be true, 'and his non-appearance in the present case or, as suggested, his statement after [appearing in Court that he had no instructions, only amounted to a non-appearance of the defendants. The law does not require the defendants to appear. What is required is that the defendant should have notice of the application. The 'service on Mr. Umrao Lal, as stated above, is a due service on the defendants.

6. It was finally argued that the Court could not allow restoration without finding that the grounds for non-appearance were sufficient. The Court has referred to the affidavits of the plaintiff, and it has not been contended that even if the affidavits be considered to be true, the facts stated therein do not amount to a sufficient reason. As stated above, the reference to the affidavits by the Court amounts to an acceptance of the affidavits.

7. This revision has no force, and is accordingly dismissed in limine. The application for stay is automatically dismissed.


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