Jai Devi Pandey vs Ramgopal Saini and Others

Bela M. Trivedi, J.—The present appeal has been filed by the appellant-plaintiff under Order XLI Rule 1(c) of CPC challenging the order dated 14.2.12 passed by the Addl. District Judge (FT) No. 5, Jaipur City, Jaipur (hereinafter referred to as ''the court below'') in Civil Misc. Case No. 72/10, whereby the court below has rejected the application filed by the advocate appearing for the appellant seeking restoration of the suit, which was dismissed for default by the court on 20.11.10. Heard the learned counsel Mr. Manish Sharma for the appellant and Mr. Ramgopal Saini respondent No. 1 appearing party in person. The respondent No. 1 submits that though he had engaged the learned counsel Mr. Rajesh Sharma for him, he himself wants to argue the appeal.

In the instant case the only issue involved is as to whether the advocate or pleader with his signature and file the application under Order IX Rule 9 of CPC after the dismissal of the suit. In this regard the relevant provision contained in Order III Rule 4 of CPC be reproduced as under:-

Appointment of pleader.--(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 dies, or until all proceedings in the suit are ended so far as regards the client.

It has been sought to be submitted by the learned counsel Mr. Manish Sharma for the appellant that in view of the Explanation contained in sub-rule 2 of Rule 4 of Order III of CPC, the proceedings of the suit should be deemed to be continued for the purpose of restoration under Order IX Rule 9.

The court does not find any substance in the said submission. As transpiring from sub-rule 2 Rule 2 of Order III of CPC, the appointment of pleader made as per sub-rule 1, would be deemed to be in force until determined with the leave of the court or until the client or the pleader dies or until all proceedings in the suit are ended. Once the suit is dismissed by the court, the appointment of pleader also shall cease to be in force. Therefore the application for restoration of the suit, which has already been terminated could not be filed by the pleader with his signature, without any authority or power having been given by the concerned plaintiff. As rightly observed by the court below, the application under Order IX Rule 9 could not be filed with signature of the counsel for the plaintiff seeking restoration of the suit after the suit proceedings were ended on account of having been dismissed for default. In that view of the matter the court does not find any illegality or infirmity in the order passed by the court below. However, since the application filed under Order IX Rule 9 of CPC on behalf of the appellant having been dismissed by the court on technical ground, it shall be open for the appellant to file necessary application with her signature before the court below and the court below shall decide the same in accordance with law. It is clarified that the court has not expressed any opinion as regards the merits of the application. With the aforesaid observations, the appeal is dismissed.