ORDER: Civil Revision Petition is directed against the order dated 3.10.2001 passed in I.A.No.1565 of 2001 in O.S.No.341 of 1999 by the Learned District Munsif-cum-Judicial Magistrate, Alandur. Defendant is the revision petitioner.

2. Heard the learned advocate for the revision petitioner. The respondent has been served and his name is also printed in the cause list. But none represents the respondent. Respondent called absent and set ex parte.

3. The defendant in the suit was set ex parte and hence, an application was filed by the advocate on record for the defendant, to set aside the decree dated 6.6.2001 and also to condone the delay in filing the set aside petition. The said application came to be dismissed only on the ground that the party has not filed the application and only his advocate has filed an affidavit and he is not entitled to file an affidavit on behalf of the client.

4. Now, the question is whether the affidavit and petition filed by the advocate on record is permissible?

5. No doubt, it is true that each and every affidavit has got to be filed by the concerned party or by their authorised person, agent or attorney or person who knows the facts of the case also. Here, the advocate on record filed the affidavit wherein he has specifically stated that he was well aware of the facts of the case and only in the said circumstances, he has filed an affidavit to set aside the ex parte decree and also an application to condone the delay. The circumstances under which the defendant was set ex parte, explained by the deponent and it was only within the knowledge of the advocate on record and he knows the facts of the case and only in the said circumstances, he had filed the affidavit. That apart, the concerned advocate holds vakalat for the defendant and hence, he is entitled to represent his party. The petitions have been filed only to safeguard the right and interest of the party and it is not prejudicial to the interest of the party, and hence, it cannot be said that the advocate on record is not entitled to file the affidavit and petition on behalf of his party, when especially the said petitions have been filed to safeguard the interest of that party.

6. Almost in an identical case of L.C.Saptharishi v. E.D.Balasubramaniam, (2000)1 L.W. 130, where an application under Section O.9, Rule 13 was filed and the same was dismissed and the same was sought to be restored by filing an affidavit and petition and the said affidavit and petition were filed by the clerk of the counsel and the lower Court dismissed it on the ground that the application filed by the clerk of the advocate, cannot be entertained. But, however, the said order was reversed by this Court on the ground that “any person who is conversant with the facts of the case and who is a witness to what transpired before the Court is competent to file affidavit”. Applying the the ratio in the above said judgment, I feel the advocate on record is entitled to file an affidavit and petition to set aside the ex parte decree or order and when especially, the steps taken by the advocate is not prejudicial to the rights of his client.

7. In the said view of the matter, the civil revision petition is allowed setting aside the order passed in I.A.No.1560 of 2001 by the Court below. No costs. Consequently, connected miscellaneous petition is closed.

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