Ajithkumar, J.

This is an appeal filed by the plaintiff in O.S.No.184 of

2016 on the file of the III Additional Sub Court, Ernakulam. He has filed this appeal under Section 104 and Order XLIII, Rule 1(d) of the Code of Civil Procedure, 1908, challenging the order of the Additional Sub Judge in I.A.No.3122 of 2019 in R.P.No.2027 of 2019 in O.S.No.184 of 2016.

2. On 21.06.2022, this appeal was admitted and notice was ordered to be served on the respondent. Despite receipt of notice, the respondent did not choose to appear.

3. Heard the learned counsel appearing for the petitioner. Perused the records in O.S.No.184 of 2016.

4. The suit is one for realisation of money. It is seen that the defendant in the suit, who is the respondent herein remained exparte in the suit. The appellant was therefore directed to remit the balance court fees. Since he did not make payment on 02.02.2017, time was granted on his request till 10.04.2017. Still, he did not remit the balance court fees, and therefore, the plaint was rejected on

10.04.2017.

5. The appellant has filed R.P.No.2027 of 2018 seeking to review the order of rejection. A notice on the said review petition was served on the respondent, but he did not appear before the court. On 24.09.2019, R.P.No.2027 of 2019 was taken up for consideration, but the appellant failed to appear. Therefore, R.P.No.2027 of 2019 was dismissed for default. It was thereafter, the appellant filed I.A.No.3122 of 2019 seeking to restore R.P.No.2027 of 2019. The Additional Sub Judge dismissed the said petition as per the order dated

06.03.2020. The order reads:

“Petitioner represented. Heard. The deponent in the affidavit is neither the plaintiff nor the plaintiff's counsel. Hence, the petition is not maintainable. Hence the petition is dismissed as not maintainable.”

6. The reason stated for the non-appearance of the counsel of the appellant on 24.09.2019 while R.P.No.2027 of 2019 was taken up for hearing is that the counsel entrusted for appearance failed to appear before the Court. It is stated in the affidavit filed in support of I.A.No.3122 of 2019 by the Advocate, who was asked to represent the petitioner, that she could not appear. The learned Additional Sub Judge did not entertain the said petition holding that the affidavit was not of the plaintiff nor of his counsel and hence could not be entertained.

7. Of course, when a petition for restoration on the ground of non-appearance before the Court is filed, it is appropriate to swear the affidavit by the party concerned. It is to be noted that the purpose of swearing an affidavit is to place before the Court facts by certifying it to be true. Ideally, a fact has to be placed before the Court by the person who personally knows the same. In that view of the matter, the absence of a lawyer before the court on a particular day is a fact known to him or her. As such it cannot be said that it is quite inappropriate for the advocate concerned to swear to such a fact. It is for the court to decide whether the affidavit has to be acted upon in lieu of evidence. Since the lawyer, for whose absence R.P.No.2027 of 2019 happened to be dismissed for default, has submitted the affidavit in support of I.A.No.3122 of 2019, it may not be appropriate to reject it in limine.

8. It is unjust if a party is put to peril for the fault of a lawyer. The reason for non-appearance by the lawyer who swore to the affidavit in support of I.A.No.3122 of 2019 appears to be convincing. It is seen that the respondent was not given notice on I.A.No.3122 of 2019, but a notice in this appeal was sent from this Court. He did not choose to appear before this Court. Taking into account all such aspects we are of the view that the order of the III Additional Sub Court, Ernkaulam in I.A.No.3122 of 2019 is liable to be set aside.

This appeal is, therefore, allowed. I.A.No.3122 of 2019 stands allowed. The III Additional Sub Judge, Ernakulam is directed to restore R.P.No.2027 of 2019 in O.S.No.184 of 2