MAHESHA Vs. BHAWANI SINGH

JUDGEMENT

(1.) THIS is an application for restoration of the revision application filed by the applicant which was dismissed in default by this court on 17. 11. 55. The learned counsel for the non-applicant has repelled the application on two grounds. His first contention is that Shri Poonam Chand Advocate who presented this application for restoration was not competent to do so as no such power was given to him by his clients in the vakalatnama, filed by him on 10. 11. 54 in the revision application. I have examined this vakalatnama and I find that the clients had authorised Shri Poonam Chand Advocate to "act and plead" on their behalf in this case. It was however mentioned in the printed form that the counsel will not be responsible if the suit is dismissed in default. The learned counsel has urged that these words as they appear in the printed vakalatnama mean that the counsel was by implication restrained from filing an application for restoration. I cannot subscribe to this view as the words "act and plead" clearly mean that if once a vakatatnama is filed by a pleader in a suit, it remains in force until all the proceedings in the suit are ended so far as the client is concerned. Order 3, Rule 4, Note 17 is clear on this point, wherein it has been laid down that it is not necessary to file fresh vakalatnama for the purpose of appearing in execution proceedings or in appeal or for setting aside an ex party decree or for an application to restore a suit dismissed for default. THIS contention of the learned counsel for the opposite party, therefore, fails. In the alternative he has also argued that an application for restoration of a revision application was incompetent as no such provision exists in the Civil Procedure Code. He has relied on A. I. R. 1945 Madras page 103 wherein a Single Judge of that Court held" that the dismissal of a case for default of appearance is as such a final order as a dismissal on the merits; and the court cannot set aside its own order unless it has jurisdiction to do so. In the case of suits and appeals, the power exists under Q. 9, R. 9 and O. 41, R. 19, Code of Civil Procedure to set aside the dismissal of suits and appeals in default of appearance ; but those provisions do not apply to civil revision petitions and as there is no corresponding provision relating to civil revision petitions the Court has no jurisdiction to restore to the file civil revision petitions which have been dismissed for default of appearance. The petitions cannot be restored under sec. 151 because that section does not confer upon a court the power to exercise a jurisdiction which it does not otherwise possess". THIS proposition of law was discussed by the Rajasthan High Court in its single Bench decision Ramdhan vs. Goverdhan R. L. W. Page 32 wherein Justice Sharma after reviewing this as various rulings of the other High Court, held a different view and observed that under sec. 151 an application for a revision could be restored In view of this latter decision of the Rajasthan High Court, I am in respectful agreement with the view taken by it and hold that in order to do real and substantial justice for the administration of which it exists, the provision of sec, 131, C. P. C. , may and should be resorted to. In the result, I hold that an application for revision dismissed for default can be resorted provided sufficient cause is shown. The learned counsel for the non-applicant has not pressed as to whether any sufficient cause for the non-appearance of the counsel for the applicant existed or not. In other words, he conceded that on the date when the case was fixed for the hearing Shri Poonam Chand was held up from appearing in the court on account of some urgent domestic work. In the circumstances, the application is allowed and the order of the dismissal is set aside and the application in revision is restored. .