MOIDEENKOYA R Vs. SAROJINI

JUDGEMENT

(1.) This is a petition on behalf of the appellant for permission to represent an appeal filed earlier and which was returned for curing of defects. The appeal was originally presented in this Court on 18.12.1999. The appeal was accompanied by a petition under O. XXXIII R.1 read with O. XLIV R.1 of the Code of Civil Procedure. The appeal and the application were not presented in compliance with the requirements of O.33 R.3 of the Code of Civil Procedure in that the appeal and the application was not presented by the applicant in person nor was there any application for exempting the presentation by the applicant or the authorisation of an agent in that behalf who could answer all material questions relating to the application. The Registry while noting the various defects also rightly noticed the defect that the application for permission to appeal as an indigent person was not presented by the petitioner in person. The appeal and the application were returned for representation after curing the defects.

(2.) On 3.1.2000 the Advocate who had filed the vakalath on behalf of the petitioner re - presented the appeal and the petition with an assertion that the defects were cured. The Registry noted that two of the defects subsisted one of which was the failure of the applicant to present the application and the appeal in person as enjoined by O.33 R.3 of the Code of Civil Procedure. The papers were again returned. Thereupon counsel for the applicant again re - presented the application and the appeal with a petition C.M.P. 1004 of 2000 praying that the Advocate may be allowed to re - present the application and the appeal on behalf of the applicant. The Registry noted that the appeal was sought to be filed as an indigent appeal and though it was sought to be filed as an indigent appeal, it was not presented by the appellant in person. The appeal was presented by counsel along with a vakalath and a petition had been filed for permission and sent up the matter for orders of court.

(3.) Before us counsel for the petitioner contended that a learned Single Judge of this Court in Jose v. Varkey ( 1985 KLT 1071 ) under O. XLIV R.1 read with O.33 R.1 of the Code the court can exempt the applicant from appearing in court in which case the application may be presented by an authorised agent and there is nothing to deter the Advocate himself being appointed as an authorised agent and in the light of this decision the Advocate is entitled to originally present the appeal and also to represent the same after taking back the appeal, curing the defects and representing the same. We may notice here that in the present case the counsel has not filed any material to show that he has been appointed as an authorised agent by the applicant in terms of O. XXXIII R.3 of the Code other than the fact that the applicant had executed a vakalathnama in his favour which contains the usual authorisations. In Jose v. Varkey (1985 KLT 1071) relied on by counsel it is stated: