N.M. BYRASWAMY SETTY Vs. N. PUTTANNA

JUDGEMENT

(1.) This is a civil revision petition instituted against the order dated 25-10-75, of the Addl Second Munsiff, Bangalore, in execution proceeding arising from suit No. 138 of 1956. The predecessor-in-title of Puttanna filed a suit for arrears of rent and eviction relating to a house against Muniswamy and Munisetty the defendants. The suit was decreed and an execution was sought for by Puttanna. The present petitioner caused obstruction to the delivery of posses ion and the proceedings started in Mis. No. 168/64 for removal of obstruction caused by the petitioner. This miscellaneous petition was dismissed for default of parties on 2-8-1972. Thereafter, the plaintiff-decree-holder moved Mis No. 202/72 for restoration of Mis No. 168/64 and that petition was allowed on 23-11-1974. Although Mis No. 202/72 was disposed of by the learned Munsiff, yet, on 1-3-75, another order was made by mistake dismissing that application for want of prosecution. The order dated 1-3-75 was obviously incorrect. Under section 151 Civil Procedure Code the Court could at any time correct that order. Accordingly, for 6-6-75 notices were issued including the notice to the learned Counsel for the Petitioner so that Mis No. 168/64 could be set down for decision. It may be stated that some evidence was recorded on the previous date in Mis No. 168/64. The learned Counsel representing the petitioner appeared on 6-8-75 when Mis. No. 168/64 was listed for hearing. lie submitted that notices be issued personally to the respondent (the present petitioner). The learned Munsiff considered that there was absolutely no ground for issuing personal notice to the respondent as the learned Counsel was present and hence he proceeded exparte. The case was listed for arguments on 16-8-75 and thereafter, judgment was pronounced on 25-10-75. It is against that judgment that the present revision is instituted.

(2.) The sole argument of the learned Counsel is that on 6-8-75 notice for personal service should have been issued to the petitioner (the then respondent) and that this Court should grant an opportunity to the petitioner to adduce further evidence. I do not find any merit in this request of the learned Counsel. It has to be understood that the learned Counsel representing the present petitioner never asked for an adjournment of the case, from 6-8-75 and since he represented the present petitioner on that date, he could not legitimately seek for personal notice to respondent, namely, the present petitioner. Once a Counsel is appointed by a party, subject to the contents of the document appointing him, he continues to represent that party at every stage in the proceeding. It is nobody's case that the learned Counsel representing the present petitioner had ceased to be the Counsel for him on 6-8-75 under the very terns of the Power of Attorney. If that was not so, the learned Counsel who made the appearance, very much represented the present petitioner, and as such, there was absolutely no reason why he should have asked the Court to issue a notice for personal service upon the present petitioner. Therefore, the learned Munsiff was right in rejecting his prayer and the matter could proceed ex-parte against the present petitioner.

(3.) The learned Counsel submitted that fresh opportunity must be given to the present petitioner for adducing evidence. I do not think it is possible to do so without granting the present revision which cannot be done as the learned Munsiff exercised his jurisdiction vested in him nor can he be stated to have acted in the exercise of that jurisdiction illegally or with material irregularity.