ANANT FONDU POROBO DESSAI Vs. LALITA POI

JUDGEMENT

(1.) The applicants apply for a certificate under Article 133 (1) of the Constitution of India to enable them to file an appeal in the Supreme Court against the Order of this Court dated 20th January, 1975.

(2.) The two points which according to the applicants involve substantial questions of law of public importance are, that an advocate who had a wakalatnama of the plaintiff in a suit and who makes an application for setting aside an order of dismissal of the suit need not have a fresh wakalatnama from the plaintiff; that sufficient cause for the absence which occasioned the dismissal of the suit need not shown by the advocate and by the plaintiff; and that sufficient cause shown by the advocate entitles the plaintiff to an order setting aside the order of dismissal.

(3.) In the impugned order it was held inter alia, that the advocate for the plaintiff was not entitled to make an application for setting aside the order of dismissal because he did not have a fresh wakalatnama from the plaintiff after the suit had been dismissed for default. My view was supported by the judgment in the Hyderabad Import Export Co., Secunderabad V/s. The United Trading Co., Bhagathikot, Jodhpur,1958 AIR(AP) 652, wherein it was held that strictly speaking a fresh wakalatnama of the plaintiff was necessary after the dismissal of the suit, to enable the advocate to make an application for setting aside the order of dismissal. Our decision was in a way supported by Pavoorayil Mamu V/s. Kunhimon,1955 2 MadLJ 124, wherein it was held by Mack J. that Order 3, Rule 4, Civil Procedure Code is primarily intended to protect clients from anybody other than advocates authorised by them appearing, acting and making representations on their behalf and it is not intended to penalise clients who had in fact instructed an advocate at one stage of the litigation, and immediately ratified his authority after he reported no instructions when his failure to file a fresh wakalat was brought to notice. In that case the actions of the advocate who had acted without a wakalatnama were ratified. The ratio of the case indicates that if the advocate had acted without a fresh wakalatnama, at least a ratification was necessary to validate his acts done after the initial wakalatnama had ceased to be valid.