HEARD SRI G. RAMESH, J.

( 1 ) COUNSEL representing Sri S. V. Bhatt, the learned Counsel for the appellant and M. Narender Reddy, the learned Counsel for the respondent.

( 2 ) THE Civil Miscellaneous Appeal is filed as against an order passed in LA No. 639/ 2001 in OS No. 88/2001 dated 9-7-2002 on the file of Senior Civil Judge, Cuddapah. The order impugned reads as hereunder:"this petition was filed by the learned counsel Sri M. Nageswara Reddy. On perusal of the material on hand, there is no Vakalath for M. Nageswara Reddy, as such the very petition itself is not maintainable. Hence the same is dismissed, but no costs. "

( 3 ) THE facts in nutshell are as follows:

( 4 ) THE defendant in OS No. 88/2001 on the file of Senior Civil Judge, Cuddapah filed IA No. 639/2001 praying for the relief of setting aside the exparte decree dated 28-8-2001 passed against him and receive the written statement and dispose of the matter on merits in the interest of justice. The respondent in the appeal, plaintiff in the suit, filed the suit for recovery of amount on the strength of a mortgage and it is stated in the affidavit that the appellant herein, defendant in the suit, appeared through a Counsel and asked for time for filing written statement, but due to certain litigations at Tirupathi he could not contract the Advocate for drafting the written statement on 28-8-2001 and consequently he was called absent and set ex parte and a decree was passed. It was further stated that the default is not wilful and that the written statement also is filed along with the said application. The said application was dismissed on the ground the application was not presented along with the vakalath of Sri M Nageswara Reddy, the counsel who had represented the appellant before the learned Senior Civil Judge, cuddapah. The main grievance of the appellant is that the learned Senior Civil judge as well could have returned the application for being represented along with vakalath of the Advocate and dismissing the application on the ground that the advocate is not having Vakalath is totally unsustainable.

( 5 ) IA No. 639/2001 in OS No. 88/2001 on the file of Senior Civil Judge, Cuddapah, which was filed under Order 9 Rule 13 of the Code of Civil Procedure, was no doubt signed by Sri M. Nageswara Reddy, Advocate for the petitioner/defendant. The Advocate for respondent also had taken notice and prayed for filing counter as can be seen by virtue of the endorsement made on 26-9-2001. The application is duly accompanied by an affidavit signed by the appellant/petitioner/defendant and the same was duly attested also. The only defect is that the application was not presented by sri M. Nageswara Reddy along with his vakalathnama and on that ground the application was dismissed. Even before numbering the application, the office could have taken such an objection, but however, such objection was not taken and the application was numbered and the appellant had served a copy of the same on the other side Counsel also. In such circumstances, the question that arises for consideration is whether the learned Senior Civil Judge, cuddapah is justified in dismissing the application as not maintainable for want of vakalathnama of Sri M. Nageswara Reddy, the Advocate who had signed the application?

( 6 ) ORDER 3 Rule 1 of the Code of civil Procedure dealing with appearances etc. , may be in person, by recognsied agent or by pleader, reads as hereunder:"any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent, or by a pleader appearing, applying or acting, as the case, may be, on his behalf: provided that any such appearance shall, if the Court so directs, be made by the party in person. "it is pertinent to note that the proviso specifies that any such appearanc

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