Chiranji Lal Vs. Prem
Lal & ANR.  INSC 1271 (1 August 2008)
JURISDICTION CIVIL APPEAL NO. 4770 OF 2008 (Arising out of S.L.P. (C)
No.3746/2006) Chiranji Lal ...Appellant Versus Prem Lal & Anr.
...Respondents O R D E R Leave granted.
The plaintiff is the
appellant herein. He filed a suit for decree for permanent injunction. It was
dismissed for default by an order dated 8.9.1986.
One of the grounds
taken in the application for restoration of the suit, which was prepared on
9.9.1986 and filed on 17.9.1986, was that the pairokar of the appellant could
not reach the Court in time. The said application was signed by the lawyer of
the appellant. No signature of the pairokar was put on the said application.
The learned trial
Judge dismissed the said application for restoration holding that the said
pairokar had no authority to file the application, although, the same was
signed by his lawyer.
The learned trial
Judge, furthermore, held as under:
"...Even in the
application for restoration given by the advocate for the plaintiff reason of
his absence has not been made clear, by which it is clear that in the original
case on the date of hearing regarding absence of plaintiff there is no
sufficient ground explained in the restoration application."
-1- An appeal
preferred thereagainst was dismissed. The High Court by reason of the impugned
judgment went into the merit of the matter and held as under:
" As the suit
is of the year 1986 simply for injunction without claiming any right in the
property in dispute and the reasons disclosed in the application were not
satisfactory. Therefore finding recorded by the courts below can not said to be
perverse. The finding of the fact has been recorded that petitioner has failed
to make out any case for restoration. It has also been brought to the notice of
the court that the alleged pairokar who had filed the application for
restoration, namely, Raj Kumar had filed the suit impleading the petitioner as
defendant No.1 and respondent No.4, the respondent No.4 has been impleaded as
defendant No.2. In such circumstances, it appears that they are in collusion
appearing on behalf of the appellant would urge that in terms of Rules 27 and
28 of the General Rules(Civil),1957 framed by the Allahabad High Court, it was
not necessary that the application should have been filed by the parties to the
suit. It was, furthermore, submitted that the High Court committed a serious
error in entering into the merit of the suit in its impugned judgment.
appearing on behalf of the respondents would support the impugned judgment
contending that having regard to the provisions of Order VI Rule 14 of the Code
of Civil Procedure, it was obligatory on the part of the appellant to sign the
application for restoration of the suit.
Rules(Civil), 1957 framed by the High Court in exercise of its jurisdiction
under Article 227 of -2- the Constitution of India as also Section 122 of the Code
of Civil Procedure should ordinarily be followed by the subordinate Court.
Rules 27 and 29 of the said Rules read thus:
presenting application: Every application or petition shall at the time of
presentation bear the name and also full signature or thumb mark of the person
actually presenting the same together with the date of presentation.
29.Person from whom
applications may be received: Except an application for a copy, no application
or petition and no pleading required or authorised by law to be made by a party
in court shall be received from any person other than the party himself, his
pleader, or his recognised agent (See Order III,rules 1 and 2).
Registered clerks of
pleaders, as such, can present only such applications as they are authorised to
present by the rules given in Chapter XXV of these rules."
In terms of Rule 29,
therefore, an application for restoration was not required to be signed by the
parties to the suit.
The suit was
dismissed for default on 8.9.1986. It appears from the records that an
application for restoration was prepared on 9.9.1986. Indisputably, it was
filed on 17.9.1986. Evidently, therefore, the appellant took prompt steps for
filing the application for restoration.
Order VI Rule 14 of
the Code of Civil Procedure is not applicable, inasmuch as an application for
restoration either in terms of Order IX Rule 4 or Rule 9 of the Code of Civil
Procedure is not 'pleading' within the meaning of the said provisions.
-3- Therefore, in the
facts and circumstances of this case and having regard to the prompt step taken
by or on behalf of the appellant in filing the application for restoration of
the suit, there cannot be any doubt whatsoever that it was eminently fit and
proper case for passing an order of restoration of the suit.
The grounds urged on
behalf of the respondents that the appellant was required to put his signature
on the application besides being illegal,in any event, the same being a matter
of procedure, the learned trial Judge should have given an opportunity to the
parties to rectify the said defect, if any, and only on that technical ground
the application for restoration should not have been rejected.
Order III Rule 1 of
the Code of Civil Procedure provides for appearance in a suit either by recognised
agent or by a pleader. Once a Vakalatnama is executed in favour of an Advocate,
evidently, in terms of Rule 4 Order III,he would have the authority also to
file an application for restoration.
The High Court, in
our opinion, committed a serious error in entering into the merits of the
dispute between the parties which were required to be determined by the trial
Court after framing issues and adduction of evidence by the parties in support
of their respective contentions.
For the reasons
aforementioned, the impugned judgments cannot be sustained. They are set aside
accordingly. We in exercise of our power under Article 142 of the Constitution
of India and having regard to the facts and circumstances of this case, set
aside the order dated 8.9.1986 and restore the suit to its original file.
-4- The learned trial
judge is directed to dispose of the suit as expeditiously as possible and
preferably within a period of six months from the date of communication of this
The appeal is
JOSEPH] New Delhi, August 1, 2008.