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Judgment
K. Gnanaprakasam, J.—Civil Revision Petition is directed against the order dated 3.10.2001 passed in I.A.No.1565/2001 in O.S.341 of
1999 by the Learned District Munsif cum Judicial Magistrate, Alandur. Defendant is the revision Petitioner.
Heard the learned advocate for the revision petitioner. The respondent has been served and his name is also printed in the cause list. But none
represents the respondent. Respondent called absent and set exparte.
The defendant in the suit was set exparte and hence, an application was filed by the advocate on record for the defendant, to set aside the
decree dated 6.6.01 and also to condone the delay in filing the set aside petition. The said application came to be dismissed only on the ground
that the party has not filed the application and only his advocate has filed an affidavit and he is not entitled to file an affidavit on behalf of the client.
Now, the question is whether the affidavit and petition filed by the advocate on record is permissible?
No doubt, it is true that each and every affidavit has got to be filed by the concerned party or by their authorised person, agent or attorney or
person who knows the facts of the case also. Here, the advocate on record filed the affidavit wherein he has specifically stated that he was well
aware of the facts of the case and only in the said circumstances, he has filed an affidavit to set aside the ex parte decree and also an application to
condone the delay. The circumstances under which the defendant was set exparte, explained by the deponent and it was only within the knowledge
of the advocate on record and he knows the facts of the case and only in the said circumstances, he had filed the affidavit. That apart, the
concerned advocate holds vakalat for the defendant and hence, he is entitled to represent his party. The petitions have been filed only to safeguard
the right and interest of the party and it is not prejudicial to the interest of the party, and hence, it cannot be said that the advocate on record is not
entitled to file the affidavit and petition on behalf of his party, when especially the said petitions have been filed to safeguard the interest of that
party.
Almost in an identical case of L.C. Saptharishi VS E.D. Balasubramaniam 2000 1 L.W.130 where an application u/s Order IX Rule 13 was
filed and the same was dismissed and the same was sought to be restored by filing an affidavit and petition and the said affidavit and petition were
filed by the clerk of the counsel and the lower Court dismissed it on the ground that the application filed by the clerk of the advocate, cannot be
entertained. But, however, the said order was reversed by this Court on the ground that ""any person who is conversant with the facts of the case
and who is a witness to what transpired before the Court is competent to file affidavit"". Applying the the ratio in the above said judgment, I feel the
advocate on record is entitled to file an affidavit and petition to set aside the ex parte decree or order and when especially, the steps taken by the
advocate is not prejudicial to the rights of his client.
In the said view of the matter, the Civil Revision Petition is allowed setting aside the order passed in I.A.1560/2001 by the Court below. No
costs. Consequently, connected miscellaneous petition is closed.