( 1 ) THE order passed on 19. 1. 2000 by learned Single Judge is under challenge in this appeal by the plaintiff/appellanth is application declining to restore the suit.

( 2 ). Facts in brief are that on 25. 9. 1991 plaintiff/appellant filed a suit for recovery of Rs. 8,64,336. 00 as damages with interest thereon 18% p. a. from the date of decree till date of realisation 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 (I. A. 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 vehemently opposed by the defendants, inter alia, on the ground that Mr. Anil K. Kher, Advocate had no authority to file the application since he was not the Counsel in the suit and there was no Vakalatnama executed 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 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 not been appointed an Advocate by the plaintiff.

( 3 ) ON 20. 9. 1999 another application (I. A. 9473/99) was filed by the plaintiff seeking permission to place on record the accompanying affidavit of the plaintiff alongwith 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 Vakajatnama, it was handed over to Mr. Anil K. Kher for filing in the Court. As such Mr. Anil K. Kher was duly authorised by him to appear in the suit and had been so appearing The affidavit further says that when Mr. Anil K. Kher informed the plaintiff that Vakalatnama is not on record and it might have been misplaced, therefore, another Vakalatnama was being filed. In other words the plaintiff ratified the act of Mr. Anil K. Kher, Advocate having appeared on his behalf in the suit. fresh Vakalatnama thus was filed on the suit record on 26. 7. 1999. This application was also opposed by the defendant on the ground that a new plea has been taken that from the very institution. Mr. Anil K. Kher had been engaged as a Counsel, which was not a plea taken earlier when the appeal was filed by the defendants against the order of restoration of suit and secondly, the plaintiff had been highly negligent in conduct of the suit. Attention of the plaintiff had already been drawn to the fact that there was no Vakalatnama on record in favour of Mr. Anil K. Kher when the defendants filed the reply to the earlier application seeking restorartion of the suit. Despite this nosteps were taken apparently to file Vakalatnama. As such, there was no occasion to take fresh Vakalatnama on record.

( 4 ) LEARNED Single Judge considering the facts and circumstances of the case and making reference to the decisions cited before him concluded that no doubt the rules of procedures should not be employed to defeat the dispensation of justi