M. Venkata Subba Reddy Vs State Bank of India

P.S. Narayana, J.@mdashHeard Sri G. Ramesh, counsel representing Sri S.V. Bhatt, the learned counsel for the appellant and Sri M. Narender Reddy, the learned counsel for the respondent.

2. The Civil Miscellaneous Appeal is filed as against an order passed in I.A. No. 639/2001 in O.S. No. 88/2001 dated 9-7-2002 on the file of Senior Civil Judge, Cuddapah. The order impugned reads as hereunder:

"This petition was filed by the learned Counsel Sri M. Nageswara Reddy. On perusal of the material on hand, there is no Vakalath for M. Nageswara Reddy, as such the very petition itself is not maintainable. Hence the same is dismissed, but no costs".

3. The facts in nutshell are as follows:

The defendant in O.S. No. 88/2001 on the file of Senior Civil Judge, Cuddapah filed I.A. No. 639/2001 praying for the relief of setting aside the exparte decree dated 28-8-2001 passed against him and receive the written statement and dispose of the matter on merits in the interest of justice. The respondent in the appeal, plaintiff in the suit, filed the suit for recovery of amount on the strength of a mortgage and it is stated in the affidavit that the appellant herein, defendant in the suit, appeared through a counsel and asked for time for filing written statement, but due to certain litigations at Tirupathi he could not contact the Advocate for drafting the written statement on 28-8-2001 and consequently he was called absent and set exparte and a decree was passed. It was further stated that the default is not willful and that the written statement also is filed along with the said application. The said application was dismissed on the ground that the application was not presented along with the Vakalath of Sri M. Nageswara Reddy, the counsel who had represented the appellant before the learned Senior Civil Judge, Cuddapah. The main grievance of the appellant is that the learned Senior Civil Judge as well could have returned the application for being represented along with Vakalath of the Advocate and dismissing the application on the ground that the Advocate is not having Vakalath is totally unsustainable.

4. I.A. No. 639/2001 in O.S. No. 88/2001 on the file of Senior Civil Judge, Cuddapah, which was filed under Order 9 Rule 13 of the Code of Civil Procedure, was no doubt signed by Sri M. Nageswara Reddy, Advocate for the petitioner/defendant. The Advocate for respondent also had taken notice and prayed for filing counter as can be seen by virtue of the endorsement made on 26-9-2001. The application is duly accompanied by an affidavit signed by the appellant/petitioner/defendant and the same was duly attested also. The only defect is that the application was not presented by Sri M. Nageswara Reddy along with his vakalathnama and on that ground the application was dismissed. Even before numbering the application, the office could have taken such an objection, but however such objection was not taken and the application was numbered and the appellant had served a copy of the same on the other side counsel also. In such circumstances, the question that arises for consideration is whether the learned Senior Civil Judge, Cuddapah is justified in dismissing the application as not maintainable for want of vakalathnama of Sri M. Nageswara Reddy, the Advocate who had signed the application ?

5. Order 3 Rule 1 of the CPC dealing with Appearances etc., may be in person by recognized agent or by pleader, reads as hereunder:

"Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in fore, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf:

Provided that any such appearance shall, if the Court so directs, be made by the party in person".

6. It is pertinent to note that the proviso specifies that any such appearance shall, if the Court so directs be made by the party in person. It may not be out of context if it is stated that a Pleader or an Advocate will be representing the party and merely because there is some formal defect in the presentation of an application, the Court could have either returned the application for the rectification of the defect or could have issued notice to the party to be present on a particular day for the purpose of further prosecuting the matter. In stead of choosing either of these two methods, the learned Senior Civil Judge, Cuddapah had dismissed the application on the ground referred to supra.

7. It may be relevant to have a look at Order 3 Rule 4 of the CPC which deals with Appointment of Pleader and the said provision reads as hereunder:

(1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized by or under a power of attorney to make such appointment.

(2) Every such appointment shall be filed in Court and shall, for the purposes of sub-rule (1), be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader, as the case may be, in the suit are ended so far as regards the client.

Explanation: For the purposes of this sub-rule, the following shall be deemed to be proceedings in the suit, -

(a) an application for the review of decree or order in the suit,

(b) an application u/s 144 or u/s 152 of the this Code,

(c) an appeal from any decree or order in the suit, and

(d) any application or act for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or of obtaining refund of moneys paid into the Court in connection with the suit.

(3) Nothing in sub-rule (2) shall be construed -

(a) as extending, as between the pleader and his client, the duration for which the pleader is engaged, or

(b) as authorizing service on the pleader of any notice or document issued by any Court other than the Court for which the pleader was engaged, except where such service was expressly agreed to by the client in the document referred to in sub-rule (1).

(4) The High Court may, by general order, direct that, where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the order.

(5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance signed by himself and stating -

(a) the names of the parties to the suit,

(b) the name of the party for whom he appears, and

(c) the name of the person by whom he is authorized to appear;

Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party.

8. In Nadella Satyanarayana Vs. Yamanoori Venkata Subbiab, a Full Bench of this Court while dealing with the question of presentation of execution application by pleader having no authority held that the presentation of an application by a pleader to whom the authority in prescribed manner under Rule 4 of Order 3 CPC was not given is only an irregularity which can be cured at a subsequent stage. In D.BULLI SETHAMMA Vs. L.CHINNA MALI AND ANOTHER, 1960 A.L.T. 150 it was held that if the Vakalath filed by the counsel is not in accordance with Rule 20-A of Civil Rules of Practice all that could be said is that the counsel would have no right of audience and in such a case it is incumbent upon the Court to call and hear the party and dispose of the case and simply because the counsel cannot appear in a case, it does not mean that the case should be dismissed without giving the party an opportunity to make submissions. In the light of the ratio laid down in the aforesaid decisions, I am of the considered opinion that the dismissal of the application to set aside exparte decree presented by the appellant, otherwise in order except for want of Vakalathnama of the Advocate, cannot be said to be justified since the learned Senior Civil Judge, Cuddapah, could have either returned the application for being presented along with the Vakalathnama of the concerned advocate or could have issued notice to the party calling upon him to appear before the Court on a specified fixed date. Without choosing either of these methods, the learned Senior Civil Judge, Cuddapah, definitely had committed an illegality in making such an order and hence the impugned order cannot be sustained and accordingly the impugned order by the learned Senior Civil Judge, made in I.A. No. 639/2001 in O.S. No. 88/2001 dated 9-7-2002 is hereby set aside and the matter is remanded to the Court of the Senior Civil Judge, Cuddapah for making appropriate orders in accordance with law.

9. The Civil Miscellaneous Appeal is allowed to the extent indicated above. No order as to costs.