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1971 Supreme(J&K) 18
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Mian Jalal-ud-Din, J.
Hari Kishan Shah - Appellant
Versus
Tilak Raj Bhasin - Respondent
Opposite Party. S Restoration Appln. No. 6/1970
Decided On : 08 April, 1971
Advocate For Appellant: O.N. Tikku
Advocate For Respondent: T.R. Bhasin
The non-appearance of a counsel who has been instructed by the party to appear on his behalf is a sufficient cause for the restoration of a suit dismissed for default of appearance, and the party is not required to show sufficient cause for his non-appearance.
Headnote:
RESTORATION OF SUIT - DEFAULT OF APPEARANCE - SUFFICIENT CAUSE - POWER OF ATTORNEY - VALIDITY - COUNSEL'S NON-APPEARANCE - CAUSE - PARTY'S NON-APPEARANCE - CAUSE - RESTORATION - CONDITIONS.
Fact of the Case:
The plaintiff's suit was dismissed for default of appearance. The plaintiff filed an application for restoration, stating that his counsel was unable to appear due to his engagement in another court and that he himself was in Jammu and could not attend the hearing. The respondent objected to the restoration, arguing that the counsel was not validly engaged as he had not signed the power of attorney, and that the plaintiff had not shown sufficient cause for his non-appearance.
Finding of the Court:
The court held that the counsel's non-appearance was a sufficient cause for the restoration of the suit, as he had been instructed by the plaintiff to appear on his behalf and had been prevented from doing so by his engagement in another court. The court also held that the plaintiff was not required to show sufficient cause for his non-appearance, as the counsel's non-appearance was sufficient to justify the restoration of the suit.
Issues: 1. Whether the counsel's non-appearance was a sufficient cause for the restoration of the suit? 2. Whether the plaintiff was required to show sufficient cause for his non-appearance?
Ratio Decidendi: 1. The court held that the counsel's non-appearance was a sufficient cause for the restoration of the suit, as he had been instructed by the plaintiff to appear on his behalf and had been prevented from doing so by his engagement in another court. The court relied on the decision in AIR 1957 Raj 11, which held that "where counsel for a party pleads no instructions to Court, his mere physical presence is of no avail." 2. The court held that the plaintiff was not required to show sufficient cause for his non-appearance, as the counsel's non-appearance was sufficient to justify the restoration of the suit. The court relied on the decision in AIR 1932 Bom 634, which held that "where the case is called and counsel for the party is not present by reason of his being engaged in another court, though this is not a sufficient cause yet there is an inherent power vested in court to prevent injustice being done and the court should under such circumstances set aside the ex parte decree on payment of costs of the other side."
Final Decision: The court allowed the application for restoration of the suit, subject to the payment of costs of Rs. 150/-.
2. In this application Shri O. N. Tikku Advocate for the petitioner has averred that the plaintiff was at Jammu and he himself had gone to Delhi in connection with some professional work. He had asked Shri R. N. Kaul Advocate to appear for him on the said date. But Shri R. N. Kaul it appears, was not available at the moment the case was called as he had gone to Airport to be present at the reception organised in connection with the arrival of the Prime Minister on that date. On his return from the reception he found that the suit had been dismissed for default. Mr. Tikku Advocate returned from Delhi on 15th of July 1970. It is further averred that the plaintiffs counsel was told that the power of attorney on the file did not bear his signature, but there is no rule prescribing the acceptance of power of attorney in writing by the Advocate for the party if the Advocate filed the power of attorney in the court and acted on his behalf. In such circumstances, his acting on behalf of the party would amount to acceptance in law. However to avoid the controversy the counsel secured another power of attorney from the plaintiff who is at Jammu. The said power of attorney has been filed along with the application for restoration. It is prayed that the application for restoration be allowed and the suit be readmitted on its original number.
3. In his objections the respondent has contended that the application for restoration is not legally maintainable and that no sufficient cause for restoration of the suit is made out and in fact the averments made in the application cannot legally be deemed to constitute a sufficient cause. There was no validly executed power of attorney duly accepted by the plaintiffs counsel, therefore all the proceedings in the suit are void in law, and right from the presentation of the suit upto the date of the passing of the order of dismissal for default the proceedings cannot be deemed to have been properly conducted by a duly authorised counsel as envisaged by Order 3 Rule 4 C. P. C. The subsequent filing of power of attorney by the plaintiffs counsel in the application for restoration could not in law validate the proceedings upto the date of the passing of the order of dismissal and any cause shown for non-appearance by Shri O.N- Tikku Advocate could not be deemed to be a sufficient cause for default in appearance of the plaintiff. In the end the respondent prayed for the dismissal of the application
4. In support of his application Shri O. N. Tikku Advocate appeared as his witness. Shri T. R. Bhasin the respondent put himself in the witness box in order to rebut the statement of the plaintiffs counsel.
5. Shri O. N. Tikku stated that on the day when the case was dismissed for default of appearance of the plaintiff he was in Delhi. When he reached Srinagar he came to know about the dismissal of the case. He had already instructed Shri R. N. Kaul Advocate to appear on his behalf in the case. But because of the fact that he was engaged in connection with the reception of the Prime Minister at the Srinagar Airport therefore, he too could not put in his appearance in the case. About the plaintiff he said that he was at Jammu. Shri Tilak Raj Bhasin the respondent stated that on 14th of July 1970 the Prime Minister of India did come to Srinagar but the court work commenced after she had arrived as all the Judges of the High Court had gone to receive her. When, however, the work started in the High Court Shri R. N. Kaul was present In the High Court. So far as the witness remembered this Bench pronounced judgment in a certain case and Mr. R. N. Kaul was present immediately before the present case was called. The witness went on to say that Shri O. N. Tikku Advocate was not present at Srinagar on 14-7-1970 and that
