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Judgment
A. Gopal Rao, J.—Plaintiff in O.S.1403 of 1986 on the file of the X Assistant Judge, City Civil Court, Hyderabad, is the petitioner in this revision petition. This revision petition is filed against the order dated 25-2-1994, in C.M.A. No. 57 of 1992, passed by the Additional Chief Judge (Temporary), City Civil Court, Hyderabad, confirming the order of the trial Court in dismissing I.A. 1256/1990 in O.S. 1403/86 which was filed under Order 9, Rule 9 C.P.C. for setting aside the order dated 12-11-1990 dismissing the suit for default.
Petitioner filed the suit for recovery of possession of the suit mulgi. Suit was posted to 10-10-1990. Petitioner, who is a practising Doctor at Hyderabad, was to leave for the United States of America by plane from Bombay on 11-10-1990 for pursuing higher studies. On 10-10-1990, the plane in which the petitioner was to perform journey from Hyderabad to Bombay was cancelled. Consequently, petitioner was forced to postpone his journey, to the U.S.A from Bombay, from 11-10-1990 to 14-10-1990. Petitioner left for Bombay from Hyderabad on 12-10-1990 by train, and left for the U.S.A. on 14-10-1990 from Bombay. Petitioner gave General Power of Attorney to one Mr. M.A. Baig, to look-after the litigation on his behalf, but, however, on account of the upset of the travel arrangements already made, petitioner could not introduce Mr. M.A. Baig, the G.P.A. Holder, to his advocate appearing in the suit. The G.P.A. Holder, being a dose associate of the petitioner, was with the petitioner throughout and consequently the G.P.A. Holder could not attend the Court on 10-10-1990. On 10-10-1990, the case was adjourned to 12-11-1990, on pyaments of costs of Rs. 25/-by the petitioner to the respondent. On 12-11-1990, learned advocate for the petitioner appeared in the trial Court and the matter was passed-over, and as the advocate was not aware about the petitioner leaving for the U.S.A. the advocate expected the petitioner to come and pay the costs imposed earlier before the Court hours on that day, i.e., 12-11-1990. The G.P.A. Holder also came to the Court and as he was new to the Court procedures and was attending the Court for the first time, he could not meet the advocate appearing for the petitioner in the trial Court. In fact, it is the case of the G.P.A. Holder that as he never met the advocate for the petitioner in the trial Court, he could not recognise the said advocate. Ultimately, the case was called and for non-payment of costs of Rs. 25/- imposed on the petitioner on 12-10-1990, the suit was dismissed for default. Giving all the reasons mentioned above, petition I. A. No. 1256/90 to set aside the dismissal order passed on 12-11-1990, was filed by the G.P.A. Holder in the trial Court That petition was opposed by the respondent on the ground that the G.P.A. Holder did not obtain prior permission of the Court as required under Rule 23 of the Civil Rules of Practice for representing the case on behalf of the petitioner and for filing the petition on behalf of the petitioner. It was also contended by the respondent that the petitioner, though available locally on 10-10-1990, did not appear in the Court and hence it is not a fit case for setting a side the dismissal order. The trial Court dismissed I.A.1256/90, doubting the presence of the G.P.A. Holder on 12-11-1990 in the Court and also on the ground that the G.P.A. Holder cannot represent the petitioner without obtaining permission of the Court as required under Rule 23 of the Civil Rules of Practice. Appeal, CMA 57/92, filed by the petitioner before the Additional Chief Judge (Temporary), City Civil Court, Hyderabad, was also dismissed. The lower appellate Court held that the G.P.A. Holder is entitled to represent before the Court on behalf of the petitioner as one of the recognised agents, but, dismissed the appeal on the ground that the petition to set aside the default order dated 12-11-1990 was filed only on 21-11-1990; the G.P.A. Holder did not get himself examined to explain the circumstances under which he was prevented to appear in the trial Court, there is no material on record about the proposed journey of the petitioner to the U.S.A. on the relevant dates; and that the petitioner was never ready to go on with the case on any one of the prior dates when the matter was posted for consideration, by the trial Court. As mentioned already, aggrieved by the order of the lower appellate Court in dismissing C.M.A. No. 57/92, this revision petition is filed.
Learned Counsel for the petitioner contends that the fact of the petitioner going to the U.S.A. has not been denied by the respondent and therefore, the question of establishing the said fact by the petitioner does not arise; the G.P.A. Holder, being new to the Courts, could not meet the advocate for the petitioner in the suit on the relevant date; and the reasons given by the petitioner for his absence on 12-11-1990 are correct; and hence the default order passed in the suit by the trial Court on 12-11-1990 should be set aside and an opportunity to the petitioner to contest the suit on merits has to be given.
Learned Counsel for the respondent contends that the petitioner, though present locally on 10-10-1990, did not appear in the trial Court and the G.P.A. Holder is not entitled to represent the petitioner without obtaining prior permission of the Court to represent on behalf of the petitioner as required under Rule 23 of the Civil Rules of Practice; and therefore, this revision petition is liable to be dismissed.
The point for determination is whether the orders passed by the Courts below are sustainable?
It is a fact that the petitioner left for Bombay from Hyderabad on 12-10-1990 and for the U.S.A. from Bombay on 14-10-1990. Originally, petitioner planned to leave for Bombay on 10-10-90 from Hyderabad to catch the Flight to U.S.A. from Bombay on 11-10-1990, but as there was cancellation of Flight from Hyderabad to Bombay on 10-10-90 he had to postpone the journey. On 12-10-90, as mentioned already, petitioner left for Bombay from Hyderabad and from Bombay to U.S.A. on 14-10-90. These facts are categorically mentioned in the affidavit filed on behalf of the petitioner, and the same have not been denied. In those circumstances, there was no need to let in evidence on behalf of the petitioner to prove that he was planning to leave for Bomaby on 10-10-1990 and ultimately he left for Bombay on 12-10-1990. The lower Court has wrongly taken into consideration the prior conduct of the petitioner when the matter was called on the earlier occasions in dismissing the petition filed under Order 9, Rule 9 C.P.C. The question for consideration in a petition filed under Order 9, Rule 9 C.P.C. would be as to whether there was sufficient cause for the petitioner to absent himself on the relevant date when the case is posted for hearing.
The suit was dismissed by the trial Court on 12 -11-1990 for default. By that date, petitioner had already left for the U.S.A., after executing General Power of Attorney in favour of one Mr. M.A. Baig. On 12-11-1990, the advocate and the matter was passed-over for payment of day costs of Rs. 100/- by the petitioner, as per the earlier order, to the respondent. As per the averments in the affidavit filed by the G.P.A. Holder, he was present in the Court when the matter was called in the lower Court and the G.P.A. Holder could not recognize the advocate appearing for the petitioner in the lower Court and the G.P.A. Holder did not make any representation to the Court, as he was new to the Court procedures.
Valuable rights of the petitioner and the respondent are involved in the suit, and the petitioner had made all arrangements to safeguard his interests in the case by executing the General Power of Attorney in favour of one Mr. M.A. Baig. The G.P.A. Holder , though present in the lower Court procedures. In fact, the representation in the Court, as he was new to the Court procedures. In fact, the advocate appearing for the petitioner in the lower Court in the suit was present in the lower Court when the matter was called in the first instance. The explanation of the G.P.A. Holder deserves to be accepted, and the same is accepted. The very-fact that the G.P.A. Holder has filed the petition under Order 9, Rule 9 C.P.C. to set aside the ex parte decree passed against the petitioner indicates that except the G.P.A. Holder, there is no other person to represent the interests of the petitioner. No doubt, the G.P.A. Holder has not obtained the permission of the lower Court to represent the petitioner as his agent, as required under Rule 23 of the Civil Rules of Practice. This defect is only a procedural defect. The procedure to be followed by Courts is only to do justice between the parties and, therefore, any defect in procedure should not be allowed to come in the way of the Courts in doing justice between the parties. The defect, at the most, can be considered as only a curable irregularity, and not an illegality. This Court, in Mangatayaramma v. Indian Bank, 1984 (2) AWR 292 interpreting Rule 17 of the Civil Rules of Practice inter alia, held that, Rule 17 of the Civil Rules of Practice is only directory. In that case, a person who signed on behalf of the plaintiff-bank did not file into the Court the authorisation to verify the pleadings, and the same was held to be a procedural defect only. Similarly, this Court in B. Rizwang Baig v. M.C.H., 1989 (2) ALT 476, interpreting the provisions of Order 23, Rule 1(3) C.P.C., held that, instituting a fresh suit before grant of permission does not bar grant of permission to withdraw the earlier suit, and the defect, if any, in this regard must be treated as a procedural defect only. In Lodd Govindoss Krishnadas Varu Vs. P.M.A.R.M. Muthiah Chetty, , the madras High Court held that the plaint signed and verified by the agent without the leave of the Court and obtaining the leave subsequently, is only a procedural defect not fatal to the institution of the suit itself. A Full Bench this Court, in Satyanarayana v. Venkata, air 1957 A.P. 172 = 1957 ALT 367 was to consider the question as to the validity of the Execution Petition filed by a Counsel who had no Vakalat at the first instance when the Execution Petition was filed, but the vakalat duly signed by the petitioner/party was filed in the Court subsequent thereto. Dealing with the above situation, the Full Bench ruled:-
"The preponderance of judicial opinion establishes that failure to comply with the provisions regarding presentation of an application for execution is a mere irregularity so that if the person presenting it is not properly authorised to do so, the presentation would be irregular but it would not be a nullity. In such a case the Court would have a discretion to have the irregularity cured and if the applicant had acted in good faith and without gross negligence the Court would allow it to be cured.
...... ....... ....... ...... ....... ....... Apart from the desirability of achieving uniformity in a matter relating to procedure, there is a welt-known distinction between a case where the directory. The general rule is that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment is obeyed of fulfilled substantially. It has always been held that where no public policy is involved, the provisions of a statute should be held to be directory only and not mandatory. Here, it cannot be suggested that there is any public policy involved. Applying this cannon of interpretation it must be held that the provisions of Order 3, Rule 4, are directory only."
The rulings mentioned above are only a few, and it is not necessary to burden this order with similar other rulings which are many, by resorting to rhetoric repetition.
For the foregoing reasons and in view of the decisions mentioned supara. Power of Attorney Holder of petitioner without obtaining the necessary permission of the Court, as contemplated under Rule 23 of the Civil Rules of Practice, is only a curable irregularity and not an illegality. In the circumstances, I consider it just and proper to allow this revision petition on some terms.
In the result, this Civil Revision Petition is allowed, subject to the condition of the petitioner paying a sum of Rs. 250/- to the learned Counsel for the respondent in this revision petition, within two weeks from today. The petitioner shall also pay the costs imposed on the petitioner by the trial Court in the suit (and for not paid by the petitioner), Within one week from the date of receipt of a copy of this order in the trial Court. Consequently, the impugned order is set aside and LA. No. 1256 of 1990 in O.S.1403 of 1986 on the file of the X Assistant Judge, City Civil Court, Hyderabad stands allowed and the suit O.S.1403 of 1986 stands restored to the file of the said Court. The General Power of Attorney Holder of the petitioner shall file a petition in the trial Court enclosing the copy of the General Power of Attorney executed by the petitioner in his favour and seek the permission of the trial Court to prosecute the proceedings in the suit on behalf of the petitioner as the General Power of Attorney Holder of the petitioner. As and when such an application is filed, the trial Court shall consider the same and pass appropriate orders thereon in accordance with law. Failure on the part of the petitioner to comply with the conditions laid down in this order regarding payment of Rs. 250/- to the learned Counsel for the respondent in this revision petition and payment of the costs imposed on the petitioner by the trial Court (so far not paid by the petitioner), within the time stipulated above, will result in restoration of the impugned order of the appellate Court and the trial Court.
The C.R.P. is allowed accordingly.
Note:- The conditional order of this Court dated 30-11-1994 in so far as payment of Rs. 250/- to counsel for the respondent has not been complied with within the prescribed period in High Court.