The subsequent filing of the vakalat by the advocate was sufficient to cure the defect or irregularity in the presentation of the application to set aside the order of dismissal.

QAMAR HASAN, J. : -

We have before us C. M. A. No. 61 and C. R. P. No. 97 both of 1955. The former is directed against the judgment and order dated 21-1-1954 of the District Judge, Secunderabad in M. P. No. 125 of 1954 for restoration of O. S. No. 4 of 1954, which was dismissed for default on 1-12-1954. The latter challenges the propriety of the order of dismissal of the suit for default itself.

2. The facts are that the defendant filed his written statement on 23-11-1954 along with four miscellaneous applications. The advocate for the plaintiff requested for time and the case was adjourned to 1-12-1954, for filing counters. When the case was called on, it was found that neither the plaintiff nor his advocate was present. The learned District Judge, acting under Rule 8 of Order 9, Civil Procedure Code, dismissed the suit for default.

3. Mr. Janardhan Rao arrived in Court premises at 10-50 a.m., on the same date and purporting to act as junior of Mr. Venkateswarlu, who had filed his vakalat on behalf of the plaintiff, presented an application for restoration of the suit. To explain the cause of delay, he filed his own affidavit. Believing the affirmations made in the affidavit, the learned District Judge held that there was sufficient cause for the late arrival of Mr. Janardan Rao but dismissed the application on the ground that as Mr. Janardan Rao had not filed his vakalat under Order 3, Rule 4, he was not competent to file the application for restoration.

4. It is against this order the C. M. A. 61 of 1955 is directed. It is contended on behalf of the appellant that since Mr. Janardan Rao had filed his vakalat for the plaintiff on 4-1-1955 the irregularity in the presentation of the restoration application must be deemed to have been cured. In this connection, reliance is placed on Pavoorayil Mamu v. Kunhimon, 1955-2 Mad LJ 124 (A).

In that case Mack, J., laid down that Order 3, Rule 4 Civil Procedure Code is primarily intended to protect clients from anybody other than advocates authorised by them appearing, acting and making representations on their behalf and it is not intended to penalise clients who had in fact instructed an advocate at one stage of the litigation, and immediately ratified his authority after he reported no instructions when his failure to file a fresh vakalat was brought to notice.

These observations were made in a case in which the advocate for the plaintiffs, who had filed his vakalat on their behalf, had moved for an adjournment, and on its being refused, reported no instructions. The same advocate then filed an application to restore the suit to file. Objection was taken in the counter to the application that it was invalidly presented as the advocate did not file a fresh vakalat.

The advocate filed a fresh vakalat more than one month after the filing of the application under Rule 8 of Order 9 Civil Procedure Code. On these facts and the principle stated above, the learned Judge held that a vakalat filed by an advocate terminates in law when he reports no instructions. Strictly and technically a fresh vakalat should be filed when a restoration application is filed.

But if a fresh vakalat is later filed before final orders are passed on the petition, the defect in the presentation of the petition is not improper and illegal and the jurisdiction of the Court to deal with the petition is not ousted.

5. In the next place it was contended that on the date the suit was dismissed for default the appellant had nothing to do except to file counters to the miscellaneous applications filed by the respondent. If he had failed to do so by reason of his absence, the Court below would have been better advised to have proceeded under the latter part of Rule 2 of Order 17 Civil Procedure Code by raising the necessary issue and posting the case for arguments or evidence. That, in the circumstances of the case, would have been more in consonance with justice than the outright dismissal of the suit.

6. The learned advo