PRAFULLACHANDRA BIDWAI Vs. AIIMS

JUDGEMENT

(1.) The facts germane for the disposal of this application need to be mentioned. A suit for damages was filed by the plaintiff in September 1991 through his Advocate Shri B.V.Desai, whose vakalatnama appears to have been filed along with the plaint. A perusal of the record shows that the first appearance made by the present counsel for the Plaintiff Shri Anil Kher was on 6.11.1992, and he Continued to appear for the plaintiff, intermittently, thereafter. On 5.10.1998 the suit was dismissed in default, since there was no appearance on behalf of plaintiff when the case was called on for hearing. The present application under Order 9, Rule 4 was filed on 12.10.1998. In reply thereto, as the first preliminary objection, it was stated on behalf of Defendants that the Counsel who had filed the application had not been duly authorished in this regard. It was further stated that the application, which was supported by an affidavit of the Clerk of this Advocate, was not proper. It was further averred that the conduct of the Applicant/Plaintiff had been negligent throughout. The reasons given in the application for the non-appearance were also challenged. This reply was filed in March 1999. However, another application, bearing No. 9473/99, was filed on 29.7.1999 by the Plaintiff seeking permission for taxing on record his affidavit along with the "fresh" vakalatnama. It has been stated in the affidavit that the Plaintiff, before the institution of the suit, had signed a vakalatnama in favour of Shri Anil Kher and accordingly he was authorished on plaintiff's behalf since the institution of the suit.

(2.) The Defendants have seriously and vigourously challenged the restoration of the suit on the ground that it has been pending since 1991 and no substantial progress has been made and that the intention of the Plaintiff is only to harass the Defendants by keeping the litigation pending like the Sword of Domocles. It has been strenuously argued that even without entering upon the varacity and correctness of the reasons given by the Applicant/Plaintiff for the non-appearance on the date when the suit was dismissed, the present application is not maintainable since it has not been filed or signed by the plaintiff or any person duly authorised by him. It is contended that the provisions of law, that is, Order IX, Rule 9, are explicit and mendate that the plaintiff may apply for an order to set the dismissal of the suit aside. It is further contended by the Defendants that Order 3, Rule 4(2) mandates that every appointment of the Pleader shall be filed in Court. My attention has also been drawn to Chapter V, Rule 1 of the Delhi High Court (Original Side) Rules, 1967 which similarly mandate that the written authority (vakalatnama) must be filed in the Court for it to have any representational efficacy. It has further been submitted that in view of the orders of the learned Division Bench the facts now sought to be introduced by way of I.A. 9473/99 must be ignored since the case was remanded back for disposal of the present application specifically on the ground of the non-availability of vakalatnama in favour of Shri Anil Kher, Advocate.

(3.) Learned counsel for the Applicant/Plaintiff has relied on Sarabjit Singh & Ors. Vs. All India Fine Arts & Crafts Society & Ors., AIR 1990 NOC 26 in which it was held that failure by some of the plaintiffs to sign the plaint could be rectified subsequently and that these being procedural matters, it would be inappropriate to non-suit a party because of meticulous compliance with the rules. He further relied on All India Reporter Limited, Bombay with Branch Office at Nagpur & Anr. Vs. Ram Chandra Dhondo Datar, AIR 1961 Bombay 292 and Karam Singh Vs. Ram Rachhpal Singh & Ors., AIR 1977 HP 28 where similar views were expressed and failure to sign the plaint was not found to besufficient for the dismissal of the suit. He also made a mention of a decision rendered in S.No. 252/93 - entitled Shri Chander Mohan Jain & Ors. Vs. State Bank of Patiala & Anr.