JUGAL KISHORE ACHARYYA Vs. KAPIL CHANDRA ACHARYYA

JUDGEMENT

(1.) This rule is directed against the order of the Subordinate Judge rejecting the petitioners application to set aside an award on the ground of misconduct. The learned Judge held that the application was beyond time--as it clearly was--the only question arising being whether the petitioners could be said in the circumstances to have notice. The learned Judge in the Court below has acted on the presumption that as notice was served to the pleaders of petitioners, amongst other parties, they must be presumed to have known of the application to file the award. It would appear that the advocate for the petitioners refused to sign the order sheet making a statement which personally I do not understand. To use his words he did not sign the order sheet as his clients did not appear before him.

(2.) As I have said, what that meant I fail to understand. Under Order 3, Rule 4, Civil P. C, a pleader is recognised as acting for a party under a document which is executed and in the Courts is known as "vakalatnama," and under Sub-clause (2) of that Rule the appointment shall be deemed to be in force until by leave of the Court the authority is determined in writing. Nothing of that kind is to be found in this case but merely the statement to which I have referred. It is then provided under Rule 5 that there is a presumption that notice which was served on the pleader is communicated to the client. If that is an irrebuttable presumption, that is a complete answer to the petitioners case.

(3.) In my judgment the only method by which a pleader can avoid his duty of communicating notices served upon him is to file a document in writing under Order 3, Rule 4, Sub-clause (2) of the Code showing that his authority is determined. But for the presumption which arises under Rule 5 the work of the Courts would be impossible. A pleader, if he were empowered, could decline to accept notice, and in a great many cases it would be a nice question of fact as to whether in the circumstances the party did receive notice or not.