Engagement of advocate elsewhere is a sufficient cause for non-appearance under Order 9, Rule 9, Civil Procedure Code.

( 1 ) THIS is an appeal filed against an order of the Court of the Second Additional Judge, city Civil Court, Hyderabad dated 28th September, 1973 whereby he dismissed the appellant s application, i. A. No. 213 of 1973 in O. S. No. 580 of 1969.

( 2 ) THE petition, I. A. No. 213 of 1973 was filed supported by the affidavit of the advocate for the petitioner. The application for restoration of the suit was opposed by the 1st defendant. It was contended before the learned Judge that the application was not maintainable and also that there was no sufficient cause for non-appearance of the appellant-plaintiff on 26th February, 1973 when the suit was dismissed.

( 3 ) THE lower Court had observed in its order that only the Counsel for the plaintiff had filed the affidavit and even the contentions raised in the affidavit of the plaintiffs Advocate were not substantiated. The Court below had taken into account the fact that the matter was called thrice on 26th February, 1973 and that costs awarded earlier by the Court on two occasions were not paid by the plaintiff to the defendant. The Court below had expressed the view that there was force in the contention on behalf of the defendant that the plaintiff had not filed her own affidavit stating the reasons for her non- appearance and that further the affidavit filed by the Advocate did not show anything as to the cause of the absence of the plaintiff. It was also noticed by the lower Court that the petition was signed by the petitioner-plaintiff herself and not by the Advocate. In the result, the lower court held that the application was not maintainable and also that it was devoid of merits.

( 4 ) IT may be seen from the affidavit filed by the Advocate for the plaintiff that at the time when the suit was dismissed, he was actually engaged in another court. The Advocate in his affidavit had stated that earlier in the day he had appeared and argued some matters before that Court. So, quite clearly it was the advocate alone who could file the affidavit stating the fact of being engaged elsewhere at the time when the suit was called and dismissed. The view of the lower court that as the petition for restoration was not supported by an affidavit of the plaintiff and as such is not maintainable is wholly erroneous. In this case, the facts required could only be stated by the advocate and he had filed an affidavit stating those facts.

( 5 ) IT is true that the petition for restoration was signed by the plaintiff and not by her Advocate. This omission is an irregularity and does not vitiate the proceeding in any way. It was quite clearly the duty of the office before numbering the petition to return, the same, as the petition was not signed by the Advocate. It was too late in the day, on the date of hearing of the application to hold that the petition was not maintainable on the ground that it was not signed by the advocate. If the defect was pointed out by the office, it would have been rectified within the time granted. I am not impressed therefore that the application is in any way vitiated by reason of the fact that the Advocate had not signed the petition. I fail to understand what the court meant to say when it said that the application is devoid of merits. The plaintiff had examined herself in the suit and no doubt it would appear that on several dates the suit had to be adjourned on account of the plaintiff being not ready. But the question for consideration is whether there was sufficient cause for non-appearance of the plaintiff on the date when the suit was called, in this case, on 26th February, 1973. I am inclined to think that the non-appearance of the advocate on that day by reason of his being engaged elsewhere is a non-appearance for purposes of Order 9, rule 9, civil Procedure Code, and it is a sufficient cause for non-appearance.

( 6 ) IT is contended by Sri Upendralal waghray that the mere fact - that the counsel was absent is of no consequence in the case, as even if he wa

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