HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY JUDGMENT:

This CMA is filed assailing the order dated 13.10.2022 passed in I.A.No.486 of 2019 in OS.No.28 of 2014 on the file of XIV Additional Chief Judge, City Civil Court at Hyderabad.

2. Heard the submissions of Sri K.Raghavacharyulu, learned counsel for the appellant, and Sri Shyam Sunder Agarwal, learned counsel for the respondent.

3. The brief facts leading to filing of the present appeal are as under:

The appellant/plaintiff filed I.A.No.486 of 2019 in O.S.No.28 of 2014 seeking to set-aside the order, dated 21.11.2019, by which the suit filed by it was dismissed for default. The affidavit filed in support of application in I.A.No.486 of 2019 was sworn by the junior counsel representing the appellant. The reasons for non-appearance on 21.11.2019, as set out in the affidavit, are that the Junior Counsel had wrongly noted the date of hearing of the case as ‘29.11.2019’, instead of ‘21.11.2019’. The learned junior counsel, while verifying the status of the case on Online, noticed that the case was dismissed for default on

21.11.2019. Immediately, he filed I.A.No.486 of 2019 before the trial Court seeking to set aside the dismissal order.

4. The trial Court, on perusal of the docket proceedings and the affidavit filed by the junior colleague of the advocate on record for the appellant, observed that the appellant was not diligent in pursuing the matter. The trial Court further observed that the affidavit was filed by the Junior colleague of the advocate on record, swearing to the facts which are concerned only to the client and as such, it amounts to professional misconduct and thus, came to a conclusion that the application was not maintainable on the said ground alone. The trial Court also further observed that suit was filed by the appellant and therefore, the burden lies on it to prove its claim at the earliest by pursuing the matter and the appellant cannot be so careless and waste the precious time of the Court and finally, came to a conclusion that if the application is allowed, it amounts to abuse of process of law and also amounts to harassing the respondent and accordingly, dismissed the I.A.

5. Learned counsel for the appellant would submit that on previous date of hearing of the case i.e., 12.11.2019, the counsel on record was not available and therefore, the junior colleague of the advocate on record represented the matter on behalf of learned counsel for the appellant/plaintiff. The junior counsel wrongly noted the next date of hearing of the case as ‘29.11.2019’ instead of ‘21.11.2019’ and as such, he could not represent the matter on 21.11.2019. On 21.11.2019, as there was no representation on behalf of the appellant, the trial Court dismissed the suit for default. As such, the junior counsel has filed affidavit in support of application i.e., I.A.No.486 of 2019 in O.S.No.28 of 2014 for restoration of the suit. There is no illegality or infirmity in swearing the affidavit, filed in support of the application, by the junior colleague and there is no bar to file such an application by the counsel on record.

6. To buttress his submissions, learned counsel for the appellant relied upon the judgment of the Hon’ble Apex Court in Ananta Pandu Porobo Desai and others vs. Smt.Lalita POI wherein at paragraphs-1 and 2 of the said judgment, the Hon’ble Apex Court observed that the counsel appearing on behalf of the respondent has not been able to contest the position that the very same advocate who appeared in the suit on behalf of the plaintiff

1 (1978) 2 SCC 681(1)

could file an application for restoration of the suit on the authority of the original vakalatnama executed by the plaintiff in his favour and therefore, set-aside the order and restored the suit to file.

7. Learned counsel for appellant also relied upon the judgment of this Court in G.Satyanarayana vs. M.Shankar, [2001(1) ALT 365(S.B.)], wherein at paragraph-9 of the said judgment, a learned single Judge of the composite