ACHARYA SHRI DEVENDRAPRASADJI VASUDEVPRASADJI MAHARAJ PANDE Vs. SADHU MUKTAJIVANDASJI GURU ISHWARDASJI

JUDGEMENT

(1.) In each of these four Civil Revision Applications the petitioner is the same individual and the respondent is also the same individual. These four Civil Revision Applications arise out of virtually the same order which was passed in two suits which were consolidated before the trial Court and hence I will dispose of all these four Civil Revision Applications by this common judgment.

(2.) In order to understand and appreciate the points involved in this group of matters it is necessary to set out certain facts. One suit was filed as far back as March 1941 being Civil Suit No. 549 of 1941 in the Court of the Civil Judge Sr. Dn. Ahmedabad. The present opponent who is the plaintiff in that suit filed the suit challenging an order passed by the defendant the present petitioner in each of these four matters. The order that was passed by the defendant was in his capacity as the Acharya of the particular sect to which the plaintiff and the defendant belonged declaring that the defendant was Vimukh. By this suit the plaintiff challenged the order of Vimukh and claimed damages declaration etc. A second suit was thereafter filed on November 22 1943 based on the same cause of action viz. regarding the order of Vimukh passed by the Acharya but claiming damages that according to the plaintiff had arisen during the period between 1941 and 1943 i. e. during the period that had elapsed since the filing of the first suit. These two suits were consolidated by the trial Court. On February 3 1953 these consolidated suits were on board of the joint Civil Judge Jr. Dn. he being one of the Joint Civil Judges Jr. Dn at Ahmedabad for the purpose of recording further evidence of the plaintiff. By this time the evidence of the defendant was over and closed and some evidence for the plaintiff had already been recorded. Some part of the deposition of the plaintiff had also been recorded and on this particular day i. e. February 3 1953 the plaintiff was absent as he had gone to Africa and his evidence had been recorded de bene esse on commission. The advocates for both the parties were present on February 3 1953 and on that day some more witnesses on behalf of the plaintiff were to be examined but no witnesses were brought to the Court. The learned Judge trying the suit waited for some time and thereafter the learned Advocate for the plaintiff applied for time. This application for time was rejected and the Advocate applied orally for leave to withdraw his appearance on behalf of the plaintiff. The learned trial Judge granted this application on the basis that a written pursis would be filed by the Advocate later on in the course of the day. No written pursis applying for leave to withdraw his appearance in each of these two suits were ever filed and the learned trial Judge dismissed both the suits on February 3 1953 and from that time onwards till today the plaintiff has been agitating in one Court or another asking for restoration of the suit and for setting aside the order of dismissal passed on February 3 1953 On the same day i. e. on February 3 1953 two applications were presented under Order 9 Rule 9 C.P.C. for restoration. One application was filed for res- toration in Suit No. 549/1941 and the other in suit No. 1354/1943. These two applications for restoration were filed by the same Advocate who had earlier in the course of the day applied for leave to withdraw his appearance on behalf of the plaintiff and whose application for withdrawal of the appearance had been granted by the learned trial Judge. The applications were not signed by the plaintiff Obviously as the plaintiff was in Africa on that day. These two applications were dismissed by the learned Judge on the ground that the Advocate who had withdrawn his appearance earlier in the course of the day had not secured a fresh Vakalatnama from the plaintiff and therefore had no authority to present the two applications for restoration. Apart from preferring the application for restoration the plaintiffs Advocate filed appeals being Appeals Nos. 144/1953 and 145/1953 in the District Court at Ahmedabad against the orders of dismissal for default. Those two appeals were filed & March 21 1953 The same Advocate who had been representing the plaintiff in the two suits till February 3 1953 had also presented the appeals. On July 27 1955 both the appeals were dismissed and later on when Second Appeals against the decision of the District Court were filed to the High Court of Bombay the Second Appeals were also dismissed summarily. After the summary dismissal by the High Court of those two Second Appeals on July 10 1956 the trial Court dismissed the two applications for restoration which were preferred by the Advocate on February 3 1953 and they were dismissed as I have stated above on the ground that the authority of the Advocate to represent the plaintiff had come to an end on February 3 1953 before the two applications for restoration were filed. On August 8 1956 two fresh applications for restoration and two applications for condonation of delay were filed and the present four Civil Revision Applications arise out of those fresh applications for restoration. In the meanwhile the plaintiff appears to have pursued the earlier restoration applications by way of appeal against the decisions passed by the trial Court on July 10 1956 He had presented two appeals Nos. 74/1956 and 75/1956 to the District Court. Again the same Advocate filed those two appeals without obtaining a fresh Vakalatnama. On April 2 1957 fresh Vakalatnamas were filed in favour of the same Advocate and thereafter on April 22 1957 the two appeals were dismissed and again they were dismissed on the ground that the authority of the Advocate to represent the plaintiff had come to an end on February 3 1953 when the leave was granted to the Advocate to withdraw his appearance on behalf of the plaintiff.

(3.) To take up the matters which rested with the presentation of fresh applications of August 8 1956 no fresh Vakalatnama was filed at the time when they were presented but on April 2 1957 fresh Vakalat- namas were filed. On January 3 1957 the defendant filed his replies in the form of affidavits or written statements to these fresh applications for restoration. In each of the two restoration applications the plaintiff had also filed condonation application under sec. 5 of the Limitation Act being Ex. 3 and by these delay condonation applications the plaintiff applied that the time taken between February 3 1956 and July 10 1956 should be condoned. On February 22 1958 all the four applications viz. the two restoration applications and the two condonation applications were dismissed by the Civil Judge Jr. Dn. Ahmedabad on the ground that no sufficient cause had been shown by the plaintiff for condonation of delay and therefore the delay could not be condoned and hence the two restoration applications were held to be time barred. Thus all the four applications were dismissed on February 22 1958 On April 3 1958 two appeals were filed being Appeals Nos. 32 and 33 of 1958 to the District Court Ahmedabad against the orders dismissing the four applica- tions. On October 28 1959 both these appeals 32 and 33 of 1958 were dismissed. Sometime in 1960 two Civil Revision Applications being Nos. 560 and 623/1960 were filed in the High Court. These two Civil Revision Applications came to be disposed of by this High Court and Raju J. on March 10 1962 allowed both the Civil Revision Applications and remanded all the four applications the two restoration applications and the two condonation applications to the trial Court. By this time the Court of the Joint Civil Judge Jr. Dn. Ahmedabad had been abolished and the City Civil Court has been set up in its place and the matters went back after remand to one of the Judges in the City Civil Court at Ahmeda- bad. By his judgment and order dated July 30 1964 the learned Judge in the City Civil Court allowed all the four applications. He held on the delay condonation applications that there was sufficient cause for condon- ing the delay and he therefore condoned the delay and then held that the restoration applications were not time-barred and on merits he held that the applications for restoration should be granted and he therefore granted those two restoration applications also. It is against the judgments ai orders pronounced on July 30 1964 in these four applications that that present four Civil Revision Applications have been filed.