( 1 ) THE order passed on 19. 1. 2000 by learned Single Judge is under challenge in this appeal by the plaintiff/appellant. By the impugned order the Single Judge has declined to take cognizance of the application filed by the plaintiff under order 9 Rule 4 CPC. Operative part of the impugned order reads as under:-

"i consider it essential that a vakalatnama should not only have been signed by a party to the litigation but should also have been filed in Court. In the absence of its filing in distinction to its execution, an Advocate cannot act on behalf of a party. The learned counsel for the Defendants have submitted that the Plaintiff ought to have been present on the date of the dismissal of the suit, and no explanation has been given in the application to justify his absence. It is firmly established that a part, having entrusted his case to his Advocate, need not be present on every hearing of the case. I cannot also accept the submission that the application to set the dismissal aside must be filed by the Plaintiff personally.

IN the absence of the application having been signed by the Applicant/plaintiff or his duty constituted attorney or his Advocate. It is not open to the Court to consider the present application for setting the dismissal aside, which is rejected. However, the parties will be left to bear their respective costs. "

( 2 ) QUESTION which arises for our consideration is: whether an application filed by an advocate on behalf of a party in the absence of any vakalatnama by the party in favour of the counsel is non est, incapable of being regularized by the subsequent filing of a vakalatnama by the counsel?

( 3 ) FACTS in brief are, that on 25. 9. 1991 plaintiff/appellant filed a suit for recovery of Rs. 8,64,336/- as damages with interest thereon @ 18% p. a. till date of realization against the defendants. The suit was instituted through B. V. Desai, Advocate. Pleadings of the parties were complete. Suit was at the stage of framing of issues and was taken up for the said purpose on 5. 10. 1998. As nobody appeared for the plaintiff, the suit was dismissed in default. Learned counsel for the defendants was present. After the order had been passed, Mr. Anil K. Kher, Advocate appeared for the plaintiff and stated that he reached late in Court because his car had broken down on the way. This fact was recorded in the order sheet. An application (IA 9004/98) was moved by Mr. Anil K. Kher, Advocate on behalf of the plaintiff on 12. 10. 1998. The said application for restoration of the suit was opposed by the defendants. On 9. 3. 1999 the defendant filed reply. One of the objection taken was that the application for restoration was filed by Sh. Anil Kher under his signature and his personal affidavit but had no vakalatnama in his favour. Without deciding the said objections raised by the defendants, learned Single Judge by his order dated 11. 3. 1999 allowed the application. Against this order, an appeal (FAO (OS) 143/99) was preferred TO by the defendants. The said appeal was allowed on 20. 5. 1999. The order restoring the suit was set aside. Learned Single Judge was asked to decide the application afresh after taking into consideration the objections raised by the defendants that the application for restoration was not maintainable since it had been signed and presented by Mr. Anil K. Kher, Advocate who had no vakalatnama, in his favour.

( 4 ) ON 20. 9. 1999 another application (IA 9473/99) was filed by the plaintiff seeking permission to place on record the accompanying affidavit of the plaintiff along with fresh vakalatnama in favour of Mr. Anil K. Kher, Advocate. In the affidavit accompanying the said application, the plaintiff deposed that before institution of the suit, he had signed a vakalatnama in favour of Mr. Anil K. Kher, Advocate, who had been appearing in the matter since the inception of the suit. After signing vakalatnama, it was handed over to Mr. Anil K. Kher for filing in the Court.