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Andhra Pradesh High Court
Judges : A.GOPAL RAO
Abu Taher, G.P.A., M.A.Baig - Appellant
Versus
Abdul Majeed - Respondent
Decided On : 11-30-94
CIVIL PROCEDURE CODE - ORDER 9 RULE 9 - SETTING ASIDE EX PARTE DECREE - SUFFICIENT CAUSE - GENERAL POWER OF ATTORNEY HOLDER - REPRESENTATION WITHOUT PRIOR PERMISSION - CURABLE IRREGULARITY - RESTORATION OF SUIT.
Fact of the Case:
Plaintiff filed a suit for possession of property. The suit was dismissed for default on 12-11-1990. Plaintiff filed a petition under Order 9, Rule 9 C.P.C. to set aside the ex parte decree, which was dismissed by the trial court and the lower appellate court. Plaintiff filed a revision petition in the High Court.
Finding of the Court:
The High Court held that the plaintiff had sufficient cause for his absence on the date of the dismissal of the suit, as he was in the U.S.A. at the time. The court also held that the failure of the plaintiff's General Power of Attorney holder to obtain prior permission of the court to represent the plaintiff was a curable irregularity and not an illegality. The court allowed the revision petition and restored the suit.
Issues: 1. Whether the plaintiff had sufficient cause for his absence on the date of the dismissal of the suit? 2. Whether the failure of the plaintiff's General Power of Attorney holder to obtain prior permission of the court to represent the plaintiff was a curable irregularity or an illegality?
Ratio Decidendi: 1. The court held that the plaintiff had sufficient cause for his absence on the date of the dismissal of the suit, as he was in the U.S.A. at the time. The court relied on the fact that the plaintiff had made all arrangements to safeguard his interests in the case by executing a General Power of Attorney in favor of one Mr. M. A. Baig, and that the G.P.A. Holder was present in the court when the matter was called but could not make any representation due to being new to the court procedures. 2. The court held that the failure of the plaintiff's General Power of Attorney holder to obtain prior permission of the court to represent the plaintiff was a curable irregularity and not an illegality. The court relied on the fact that the defect was only a procedural defect and that the procedure to be followed by courts is only to do justice between the parties.
Final Decision: The High Court allowed the revision petition and restored the suit.
( 1 ) PLAINTIFF in O. S. 1403 of 1986 on the file of the X Assistant Judge, City Civil court, Hyderabad, is the petitioner in this revision petition. This revision petition is filed against the order dated 25-2-1994, in C. M. A. No. 57 of 1992, passed by the Additional Chief Judge (Temporary), City Civil Court, hyderabad, confirming the order of the trial Court in dismissing I. A. 1256/1990 in O. S. 1403/86 which was filed under Order 9, Rule 9 C. P. C. for setting aside the order dated 12-11-1990 dismissing the suit for default.
( 2 ) PETITIONER filed the suit for recovery of possession of the suit mulgi. Suit was posted to 10-10-1990. Petitioner, who is a practising Doctor at hyderabad, was to leave for the United States of America by plane from bombay on 11-10-1990 for pursuing higher studies. On 10-10-1990, the plane in which the petitioner was to perform journey from Hyderabad to Bombay was cancelled. Consequently, petitioner was forced to postpone his journey, to the u. S. A from Bombay, from 11-10-1990 to 14-10-1990. Petitioner left for Bombay from Hyderabad on 12-10-1990 by train, and left for the U. S. A. on 14-10-1990 from Bombay. Petitioner gave General Power of Attorney to one Mr. M. A. Baig, to look-after the litigation on his behalf, but, however, on account of the upset of the travel arrangements already made, petitioner could not introduce mr. M. A. Baig, the G. P. A. Holder, to his advocate appearing in the suit. The g. P. A. Holder, being a dose associate of the petitioner, was with the petitioner throughout and consequently the G. P. A. Holder could not attend the Court on 10-10-1990. On 10-10-1990, the case was adjourned to 12-11-1990, on pyaments of costs of Rs. 25/- by the petitioner to the respondent. On 12-11-1990, learned advocate for the petitioner appeared in the trial Court and the matter was passed-over, and as the advocate was not aware about the petitioner leaving for the U. S. A. the advocate expected the petitioner to come and pay the costs imposed earlier before the Court hours on that day, i. e. , 12-11-1990. The G. P. A. Holder also came to the Court and as he was new to the Court procedures and was attending the Court for the first time, he could not meet the advocate appearing for the petitioner in the trial Court. In fact, it is the case of the G. P. A. Holder that as he never met the advocate for the petitioner in the trial Court, he could not recognise the said advocate. Ultimately, the case was called and for non-payment of costs of Rs. 25/- imposed on the petitioner on 12-10-1990, the suit was dismissed for default. Giving all the reasons mentioned above, petition la. No. 1256/90 to set aside the dismissal order passed on 12-11-1990, was filed by the G. P. A. Holder in the trial Court. That petition was opposed by the respondent on the ground that the G. P. A. Holder did not obtain prior permission of the Court as required under Rule 23 of the Civil Rules of Practice for representing the case on behalf of the petitioner and for filing the petition on behalf of the petitioner. It was also contended by the respondent that the petitioner, though available locally on 10-10-1990, did not appear in the Court and hence it is not a fit case for setting a side the dismissal order. The trial court dismissed I. A. 1256/90, doubting the presence of the G. P. A. Holder on 12-11-1990 in the Court and also on the ground that the G. P. A. Holder cannot represent the petitioner without obtaining permission of the Court as required under Rule 23 of the Civil Rules of Practice. Appeal, CMA 57/92, filed by the petitioner before the Additional Chief Judge (Temporary), City Civil Court, hyderabad, was also dismissed. The lower appellate Courtheld that the G. P. A. Holder is entitled to represent before the Court on behalf of the petitioner as one of the recognised agents, but, dismissed the appeal on the ground that the petition to set aside the default order dated 12-11-1990 was filed only
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