1983 Supreme(MP) 875

IN THE HIGH COURT OF MADHYA PRADESH
U.N. BHACHAWAT, J.
Union of India – Appellant
Vs.
Maj. K.D. Gupta – Respondent
C.R. No. 755 of 1983 (G);
Decided on : 21-10-1983.

Headnote:(1) Civil Procedure Code, 1908 - O.9, R. 9 - sufficient cause for restoration - bonafide belief regarding date fixed in case made out - no further enquiry is necessary.

       (2) Civil Procedure Code, 1908 - O.3, R.4 (2) - Expl. (a) and (b) - power of a counsel - does not determine on dismissal a case in default.

       Short Note

       1. This is a revision against the order dated 18 - 8 - 1983 of the Court of the District Judge, Gwalior, in Civil Miscellaneous Case No. 39 of 1983, whereby it has ordered restoration of Miscellaneous Civil Case No. 101 of 1982 (the application of the non - applicant herein for permission to sue as an indigent person) (for short, hereinafter referred to as 'application No.1'). The non - applicant herein had filed application No.1 in the aforesaid Court. This application was dismissed for default in appearance of the non - applicant on 2 - 5 - 1983. On 3 - 5 - 1983, the non - applicant filed an application (which will, for short, hereinafter be referred to as 'application No.2) for restoration of application No.1 stating that under an impression that the case was posted on 3rd May 1983, he did not appear on 2nd May 1983, on which date he was on duty at Mathura. The trial Court requested Shri N.P. Mittal Advocate, who had been appearing for the non - applicants in application No. 1 to take notice of application No.2, whereupon Shri Mittal submitted an application in writing that he is, of course, the standing counsel for the Union of India for High Court and not for the Subordinate Courts and therefore, notice may be issued to non - applicants No.1 and 2 of application No.2, who are the applicants herein. The trial Court, despite this submission of Shri Mittal in writing, heard application No.2, allowed it and restored application No.1. It is against this order, i.e. the impugned order, that the present revision has been filed.

       2. Held: On perusal of O.3, R.4(2) Explanation (a) and (b), CPC, it can very well be called out that the power of Shri Mittal does not determine on the dismissal of the suit for default in appearance, and he continues to be a counsel of the parties whom he was representing in application No.1 for the purpose of restoration proceedings. It would be of significant relevance to point out that there is a specific power given to Shri Mittal in his 'Vakalatnama' filed in Civil Miscellaneous Case No. 101 of 1982, i.e., application No. 1. To quote:

       “*** *** *** ***

       I/We Lt. Col. B.S. Rai Station H.Q. Morar Plaintiff/Appellant (s) Petitioner (s) Defendant (s) Respondent (s) non - petitioner in the above petition/suit /appeal/revision/ reference do hereby appoint and retain Shri N.P. Mittal, Shri M.K. Qureshi, Dr. Nirmal Mittal, Advocates to act, appear and represent for me/us in the above noted matter and on my/our behalf to conduct and prosecute, defend with powers to withdraw, 'compromise or refer to arbitration, the same and all proceedings that may be taken in respect to any application including the application for restoration connected with the same or any decree or order passed therein including proceedings in execution, taxation and application for review, to file and obtain return of documents and to deposit and receive money on my/our behalf in the said matter and in applications for review, and to represent me/us and to take all necessary steps on my/our behalf in the above matter, I/we agree to rectify all acts done by the aforesaid Advocate (s) in pursuance of this authority. Sd/ - Lt. Col B.S. Rai."

       3. In view of this Shri Mittal, should have taken notice of application No. 2 which was for restoration of application No.1. It is also of significant relevance to point out that this power enables him to take - notice, which the District Judge had requested him to take, of the application No.2. At any rate there was no prohibition to him from taking notice of application No.2. See Mst. Boro Bai v Ramsunder, (AIR 1938 Nag. 272). In view of this, the contention No.1 raised by Shri Mittal deserves to be repelled and is, accordingly, repelled.

       4. With regard to the second contention, application No.2 for restoration of application No.1 was filed the very next day, which buttresses the averment of the applicant of application No.2 (non - applicant herein) that he was under a bonafide impression that application No.1 was posted for 3rd May 1983; otherwise, a person being at Mathura could not have known of the dismissal of application No.1 on 2nd May 1983. The very fact that he appeared in the Court on 3 - 5 - 1983 is indicative of his bonafide belief. Looking to the nature of the case, no further enquiry except to peruse the averments made in application No.2 was necessary in the instant case. I asked Shri Mittal as to what type of enquiry could be made in the case. The only point to be enquired in the case was whether the non - applicant herein was under a bonafide belief 'that the case was posted on 3 - 5 - 1983 or not. The answer of Shri Mittal was that he could have pointed out that had he copy of application No.2 been supplied to him, the contents whereof, as a matter of fact, had been read over to him, he could demonstrate as to on what point the enquiry was to be made. To reiterate, the matter depended upon the belief, the version of the non - applicant herein - as to whether be was under a bona fide belief or not that application No.1 was posted for 3 - 5 - 1983, and whether his belief was justified or not. This depended upon believing the version of the non - applicant herein. In the facts and circumstances of the case, already stated herein above. I find that there was a sufficient cause and the trial Court was right in restoring application No.1, AIR 1938 Nag. 272 relied on.