R M BEDI Vs. VIJAYESWARI TEXTILES LTD

JUDGEMENT

(1.) THIS appeal arises out of the order and decree dated 04. 08. 2004 made in O. S. No. 105 of 2003 on the file of Additional District and Sessions Judge (Fast Track Court No. III), Coimbatore.

(2.) THE brief facts leading to the filing of this appeal are as follows : (i)The suit is for recovery of money directing the first defendant to pay Rs. 19,25,000/- with subsequent interest at the rate of 18% per annum and for proper account of all the goods sold and shipped to the second defendant after 05. 12. 1997 till the date of the suit and to direct the first defendant, namely, M/s. Vijayeswari Textiles Ltd. , Coimbatore, represented by its Director to pay a commission of 5% thereon with interest at the rate of 18% per annum. (ii)When the suit was posted on 15. 10. 2003, the plaintiff and his counsel were not present and hence the suit was dismissed for default. The Counsel for the plaintiff filed I. A. No. 223 of 2004 and prayed for restoration of the suit, which was dismissed for default. He has stated that the plaintiff is an old man living in Germany. He has travelled to India on many occasions to attend the Courts. The Trial could not be commenced. On the day when the matter was listed, he could not appear in the Court in time and the matter was dismissed for default. In support of the petition, learned Counsel on record filed an affidavit. (iii)The first respondent, namely, M/s. Vijayeswari Textiles Ltd. , filed a detailed counter affidavit and contended that the affidavit filed in support of the application has been filed by the Counsel and not by the plaintiff. He submitted that the provisions of Order 9 Rule 9 C. P. C. is mandatory and that the plaintiff should apply for restoration of the suit only on furnishing sufficient cause for non-appearance. Inasmuch as the plaintiff has not chosen to file an affidavit or give any valid reasons for his non-appearance on 15. 10. 2003, the application is not maintainable in law. The first respondent further submitted that as per the provisions of Order 9 Rule 9 C. P. C. , unless the plaintiff satisfies the Court that he was prevented from appearing in Court by a sufficient cause, no order of restoration can been passed. The application was also resisted on merits. (iv)The Lower Court considered the issue as to whether the application under Order 9 Rule 9 C. P. C. can be filed with the supporting affidavit of the counsel appearing for the plaintiff. Learned Trial Judge found that when an affidavit is filed on behalf of the plaintiff, the Counsel who is appearing for him assumes the role of a witness and is liable to be cross-examined by the Counsel appearing on the other side. When the Counsel appears as a witness, nobody will be there to represent the case of the plaintiff and regulate the mode of examination of the witness in accordance with the Evidence Act. In view of the specific provision under Section 49 (c) of the Advocates Act, the Lower Court observed that the learned Counsel is permitted only to appear for and on behalf of the plaintiff by filing a Vakalat or a power, but, does not authorise a Counsel to appear as a witness in the very same proceeding. (v)The Lower Court held that Order 9 Rule 9 C. P. C. mandates that the plaintiff should satisfy the Court, when there is sufficient cause for his non-appearance. The Court finally held that Order 9 Rule 9 does not authorise a counsel on record to file an affidavit stating sufficient cause for non-appearance of the plaintiff before the Court on a particular hearing. In such circumstances, the Trial Court held that the affidavit filed by the Counsel on record for non-appearance of the plaintiff as impermissible in law and consequently dismissed the application filed for restoration. Aggrieved by the said decision, the plaintiff has preferred this appeal.

(3.) HEARD Mrs. Pushpa Sathyanarayanan, learned Counsel for the appellant and Mr. M. S. Krishnan, learned Counsel appearing for respondents.