BALAKRISHNAN Vs. GEETHA N.G.

JUDGEMENT

(1.) This appeal is directed against the order in I.A.No.4078/2013 in O.P.No.1145/2011 of the Family Court, Thrissur. Appellant/petitioner filed the above O.P. for declaration of title over the plaint schedule property and other incidental reliefs against his wife, the respondent herein. The appellant filed another O.P.No.1162/2011 seeking return of gold ornaments and other articles. The wife also filed three other petitions, namely, O.P.Nos.1239/2011, 1126/2012 and 78/2013 against her husband. While so, the appellant filed I.A.No.2421/2013 for joint trial of all the above five cases and accordingly, on 9.12.2013, the senior counsel entrusted the file to junior counsel, who failed to represent the case. Therefore, O.P.No.1145/2011 and O.P.No.1162/2011 were dismissed on the ground that there was no representation. In the circumstances, an application for restoration of the case under Order IX Rule 9 of the Code was filed by the petitioner's Advocate for and on behalf of the petitioner/appellant. That application was dismissed stating that the petition and the affidavit were signed by the Advocate and not by the party. In the above circumstances, the appellant/husband approached this Court with this Mat. Appeal.

(2.) Now the question in dispute is that whether the petition under Order IX Rule 9 of the Code was presented in the Court below as per law A close scrutiny of the argument shows that this point is purely technical in nature since the application was not signed by the petitioner but by the petitioner's Advocate. According to O.III R.4 of the Code, 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 authorised by or under a power-of-attorney to make such appointment. In this case the petitioner appointed an Advocate to act on his behalf in the suit and proceedings arising therefrom within the meaning of O.III R.4. In accordance with such authority, his Advocate acted in the proceeding by signing and presenting the petition for restoration. He did it for the benefit of his client in order to protect the interest of the petitioner, which shows an implied consent.

(3.) The learned counsel appearing for the appellant contended that five cases were pending before the Family Court, Thrissur and on the date of filing the joint trial petition, the appellant's two cases were dismissed stating that there was no representation. According to the learned counsel for the appellant, it is not necessary that invariably in all cases the petition has to be supported by the affidavit of the petitioner himself. The petition filed with a supporting affidavit of the advocate was found to be perfectly legal, since the facts stated in the affidavit were found to be within the exclusive knowledge of the counsel. He relied on the decision Abdu Karrem v. State of Kerala, 2006 2 KerLT 408. The learned counsel appearing for the respondent contended that the party has to sign the petition and the affidavit and the counsel has to verify it.