Technicalities should not hinder the consideration of urgent matters, and any person acquainted with the facts of the case and court proceedings is competent to file an affidavit.

1. Defendant in O.S.1262 of 1991 on the file of IV Assistant City Civil Court, Madras is the revision petitioner herein.

2. An ex parte decree was passed against petitioner and to have the same set aside, petitioner moved I.A. 3919 of 1996. When that application was dismissed for default I.A. 19563 of 1996 in I.A.3919 of 1996 was filed to have the same restored. That application was dismissed as not maintainable, against which C.R.P.1893 of 1999 was filed.

3. On the basis of ex parte decree, decree holder moved execution application for getting possession of the property. Petitioner therefore filed I.A.7082 of 1997 to stay the execution proceedings. The same was dismissed, against which C.R.P.1892 of 1999 was filed.

4. Notice of motion was ordered and after appearance of respondent, I heard the counsel on both sides.

5. I will first consider C.R.P.1893 of 1999. AS stated earlier, application under Order 9 Rule 13 of Code of Civil Procedure was dismissed for default and the same was sought to be restored by filing I.A.19563 of 1996. Affidavit in that petition was filed by the clerk of the counsel. Lower Court was of the view that the application filed by the clerk cannot be entertained and consequently dismissed the application. In the affidavit in support of the application, the deponent has said that Order 9 rule 13 petition was posted on 28. 1996. Even before that date lower court has ordered notice on the restoration application. But the same could not be served since there was no correct address of the advocate of plaintiff. But the case was passed over. At 1.30 p.m., petitioner’s counsel informed lower Court that he will get further instructions to take steps and the same was passed over after lunch session. Since counsel was held up during after lunch session, he could not be present when the case was called. Immediately lower Court dismissed it.

6. Why I am extracting the contents of the affidavit is that the affidavit is sworn to by a person who is acquainted with the facts of the case and who is acquainted with the proceedings of the Court. He narrated what transpired before the Court on that date. Application is filed by the counsel, who is competent to file the same, and he has taken the statement of the clerk stating reasons why the application shall not be restored. The clerk by himself has not filed the petition. It is well settled that any person who is conversant with the facts of the case and who is witness as to what transpired before the Court is competent to file affidavit.

7. Lower Court was too technical in dismissing the application as not maintainable. In certain urgent matters, if parties could not be present, counsel got power to move Court and Vakalat authorises him to do so. Court is only concerned about the administration of justice and such technicalities should not stand in the way of considering the same. What transpired before the Court is not the matter in dispute. In the counter affidavit filed by respondents before the lower Court, he is not disputing the statement made in the affidavit. He only gave history of the litigation. Under these circumstances, I feel that the impugned order must be sent aside and the lower Court must be directed to consider I.A. 3919 of 1996 on its merits.

8. In the result, order in I.A.19563 of 1996 in I.A.3919 of 1996 is set aside and lower Court is directed to restore I.A.3919 of 1996 in O.S.1262 of 1991 on its file and pass orders on the same in accordance with law after giving reasonable opportunities to the parties to adduce evidence, if any.

9. As stated earlier C.R.P. 1982 of 1999 was filed to stay the execution of the ex parte decree till final orders are passed in I.A.3919 of 1996. Before this Court, there was as interim or stay and the same was being extended from time to time. It is agreed between parties that the entire arrears have been paid and the decree amount has also been paid to the decree holder and what remains is only takin