RAMESH KUMAR Vs. CAPT. B.S. SANDHU

JUDGEMENT

(1.) A suit for the recovery of Rs. 50.000/ - as damages against the respondent was filed by the petitioner in forma pauperis along with an application under Order 33, Rule 1, Civil Procedure Code, for permission to sue as an indigent person. The application was fixed for January 25, 1975, on which date the respondent appeared, but as neither the petitioner nor his counsel put in appearance, the same was dismissed in default. The counsel of the petitioner Shri H.S. Awasthy submitted an application on January 27, 1975, under Order 9, Rule 9, Civil Procedure Code, for restoration of the application under Order 33, Rule 1, Civil Procedure Code, in which it was averred that the counsel of the petitioner had omitted to note the date of hearing of the said application in his diary and had gone out of station with the result that he could not put in appearance in time when the case was called. This was contested by the respondent. Inter alia it was contended that there was no sufficient cause to set aside the order dismissing the application in default. After framing of the issue and evidence, this application was dismissed by the trial Court. The appeal by the petitioner also did not prove successful. This order has been challenged in the present second appeal.

(2.) IT has been held by the Courts below that it was essential to file a fresh power of attorney by the counsel, who filed the application for restoration and further that sufficient cause had net been proved for setting aside the order of dismissal. The learned counsel for the petitioner has relied upon Abdul Aziz v. Punjab National Bank Ltd : A.I.R. 1929 Lah. 96, and Pannalal and another v. Firm Ballaram Basia : A.I.R. 1957 Raj 391, in support of the proposition that an application for restoration is a part of the proceedings in the original suit and that fresh power of attorney was not necessary. On the other hand reliance has been placed on The Hyderabad Import Export Co., Secunderabad v. The United Trading Co., Bhagathikot, Jodhpur : A.I.R. 1958 A.P. 652, and Anant Pondu Parobo Desai and others v. Smt. Lalita Poi, A.I.R. 1975 Goa. 30. I am of the considered opinion that fresh power of attorney was not necessary to be filed, because the original power of attorney continues to be in operation till the final decision of the suit. I am in agreement with the ratio of the decisions in Abdul Aziz v. Punjab National Bank Ltd., And Pannalal and another v. Firm Ballaram Basia (Supra). I am not inclined to agree with the view expressed in The Hyderabad Import Export Company, Secunderabad v. The United Trading Company, Bhagathikot, Jodhpur (supra) and Ananta Pondu Porobo Desai and others Smt. Lalita Poi (supra). When the suit of application in forma pauperis is dismissed in default, the proceedings do not come to a final end. The application for restoration has to be treated as in continuation of the earlier proceedings. It was then contended by the learned counsel for the respondent that as the original proceedings were on an application under Order 33, Rule 1, Civil Procedure Code, for which the mandatory requirement was that the application is to be signed by the applicant presented in person, the same procedure was required to be followed in the application for restoration. I am afraid, I can not subscribed to that view. The procedure prescribed under Order 33, Rules 1 and 3, Civil Procedure code, is a specific procedure only applicable to the application referred to in that order. That principle cannot be extended to the application for restoration. It was not necessary for the petitioner to sign the restoration application personally or to present the same in person. The learned counsel for the petitioner has vehemently challenged the finding of the Courts below to the effect that the petitioner was not able to prove sufficient cause to justify the setting aside of the order of the dismissal in default. It has been contended that Shri H.S. Awasthy, the learned counsel for the appellant in the original suit, appeared in person and made a categorical statement that he had omitted to mentioned the date of the said case in his diary and further that he being out of station, could not appear in that case in time. It was further contended that no question was put in cross -examination by the other side. The learned counsel for respondent has only canvassed the proposition that it is a concurrent finding of fact, which should not be disturbed in second appeal. A perusal of the impugned judgment shows that the courts below did not apply their minds properly to the evidence on the record and probably were swayed by the erroneous proposition of law that fresh power of attorney was essential and as such came to the conclusion that the application made by the counsel was not maintainable. This fact also cannot be lost sight of that the restoration application was made only two days after the order of dismissal had been passed. That also shows the bona fide nature of the stand taken by the counsel when he appeared in the witness box. Consequently the appeal is allowed and the order of dismissal dismissing the application in default, is set aside. The application under Order 33, Rule 1, Civil Procedure Code will be now considered by the trial Court on merits,