HARI KISHAN SHAH Vs. TILAK RAJ BHASIN

JUDGEMENT

(1.) THIS is an application for restoration of the suit No. 4 of 1970 entitled Mohant Hari Kishan Shah v. Shri T. R. Bhasin that was dismissed for default of appearance of the plaintiff on 14 -7 -1970.

(2.) IN this application Shri O. N. Tikku Advocate for the petitioner has averred that the plaintiff was at Jammu and he himself had gone to Delhi in connection with some professional work. He had asked Shri R. N. Kaul Advocate to appear for him on the said date. But Shri R. N. Kaul it appears, was not available at the moment the case was called as he had gone to Airport to be present at the reception organised in connection with the arrival of the Prime Minister on that date. On his return from the reception he found that the suit had been dismissed for default. Mr. Tikku Advocate returned from Delhi on 15th of July 1970. It is further averred that the plaintiffs counsel was told that the power of attorney on the file did not bear his signature, but there is no rule prescribing the acceptance of power of attorney in writing by the Advocate for the party if the Advocate filed the power of attorney in the court and acted on his behalf. In such circumstances, his acting on behalf of the party would amount to acceptance in law. However to avoid the controversy the counsel secured another power of attorney from the plaintiff who is at Jammu. The said power of attorney has been filed along with the application for restoration. It is prayed that the application for restoration be allowed and the suit be readmitted on its original number.

(3.) IN his objections the respondent has contended that the application for restoration is not legally maintainable and that no sufficient cause for restoration of the suit is made out and in fact the averments made in the application cannot legally be deemed to constitute a sufficient cause. There was no validly executed power of attorney duly accepted by the plaintiffs counsel, therefore all the proceedings in the suit are void in law, and right from the presentation of the suit upto the date of the passing of the order of dismissal for default the proceedings cannot be deemed to have been properly conducted by a duly authorised counsel as envisaged by Order 3 Rule 4 C. P. C. The subsequent filing of power of attorney by the plaintiffs counsel in the application for restoration could not in law validate the proceedings upto the date of the passing of the order of dismissal and any cause shown for non -appearance by Shri O.N - Tikku Advocate could not be deemed to be a sufficient cause for default in appearance of the plaintiff. In the end the respondent prayed for the dismissal of the application