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2007 DIGILAW 51 (AP)

B. Mallikarjuna Reddy v. G. V. Subba Reddy

2007-01-18

P.S.NARAYANA

body2007
J U D G M E N T This civil miscellaneous appeal is filed as against an order made in I.A.No.289 of 2005 in O.S.No.225 of 2004 on the file of II Additional Senior Civil Judge, Nellore, dated 25th October 2005. 2. Appellant herein petitioner-plaintiff filed the aforesaid application under Order IX Rule 9 read with Section 151 of the Code of Civil Procedure (hereinafter in short referred to as ‘the Code’ for the purpose of convenience) praying for restoration of the suit which was dismissed for want of representation on 01.8.2005. Respondentdefendant resisted the application and the learned judge, after recording certain reasons, arrived at a conclusion that there are no grounds to allow the application and accordingly dismissed the said application. Aggrieved by the same, the present civil miscellaneous appeal is preferred. 3. Smt. Ramani Jonna, learned counsel representing the appellantplaintiff made the following submissions. The learned counsel would contend that the dismissal of the application on the ground that the affidavit of the plaintiff was not filed in support of the application cannot be sustained for the reason that the advocate on record who had sworn to the affidavit had knowledge about the facts to be sworn in the said affidavit and hence the non-filing of affidavit of the plaintiff in support of the application cannot be made a ground to dismiss the said application. The learned counsel also had placed respective pleadings of the parties before this Court and had pointed out to the averments made in paragraphs 2, 3, 4 and 5 of the written statement and would contend that the execution of promissory note in question in favour of K.Chandrasekhara Reddy is not in serious dispute and the fact that the appellant - plaintiff as holder in due course on the strength of the transfer made by the K.Chandrasekhar Reddy had instituted the suit also is not in serious dispute. In the light of such admissions made even if there is some negligence on the part of the counsel representing the plaintiff or the plaintiff, as the case may be, instead of dismissing the suit as such atleast a decree could have been passed on the strength of such admissions in the light of Order IX Rule of the Code. The learned counsel placed strong reliance on the decision of this Court in G.SATYANARAYANA VS. The learned counsel placed strong reliance on the decision of this Court in G.SATYANARAYANA VS. M.SHANKAR(1) and also the decision of the Apex Court in CALCUTTA PORT TRUST V. SHALIMAR TAR PRODUCTS LTD., (2). 4. Per contra, Sri K.Sudarshan Reddy, learned counsel representing the respondent would submit that this is not a case to interfere with, especially, in the light of conduct of the parties. The learned counsel would submit that it is not as though the parties to the litigation are illiterate. They know the consequences and deliberately the plaintiff did not attend the court and though the matter was adjourned on payment of costs, the said amount also was neither paid nor deposited. In the light of the said conduct, the application itself cannot be said to be a bona fide one. The learned counsel while further elaborating his submissions would maintain that the ground that the counsel was engaged in yet another court cannot be made a ground while praying for restoration of the suit. Even otherwise the party had not sworn to the affidavit, but the advocate on record had sworn to the affidavit filed in support of the said application. Strong reliance was also placed on the decision in AMIN LAL V. SHIB DAYALAND OTHERS(3). 5.Heard the counsel. 6. The appellant herein the plaintiff in O.S.No.225 of 2004 filed the said suit as against the respondent-defendant for recovery of amount on the strength of a promissory note. The respective pleadings of the parties need not be dealt with at length, but however, it is suffice to state that even in the written statement filed by the respondent-defendant, the execution of the promissory note in question in favour of Chandrasekhara Reddy had not been put into issue. In other words, there is no serious controversy relating to the said aspect. 7. Be that as it may, the present application I.A.No.289 of 2005 was filed by the appellant under Order IX Rule 9 read with Section 151 of the Code praying for restoration of the suit which was dismissed for want of representation on 01.8.2005. It is true that the ground taken by the advocate who had sworn to the affidavit is that he was engaged in another court and hence could not attend the court at the time when the plaintiff was called. It is true that the ground taken by the advocate who had sworn to the affidavit is that he was engaged in another court and hence could not attend the court at the time when the plaintiff was called. The application was resisted on the ground that the plaintiff is not an illiterate person and he is a retired employee and the Court, in fact, waited till 3-30 p.m. and since left with no other option, ultimately dismissed the suit for default. The learned II Additional Senior Civil Judge, Nellore recorded certain reasons in paragraphs 4 and 5 and ultimately dismissed the said application. It was no doubt recorded that the issues were framed on 29.3.2005 and the matter was posted for trial on 20.6.2005 and on that day plaintiff was absent and the court directed him to produce witnesses on 04.7.2005 finally and again the plaintiff was absent and at the request of the counsel for the plaintiff the matter was posted to 01.8.2005 on payment of costs of Rs.100/- and again on 01.8.2005 the plaintiff was called absent and there was no representation on behalf of the plaintiff and the costs of Rs.100/- also had not been paid, and hence, the suit was dismissed without costs. 8. It is no doubt true that Sri N.Sudheer Reddy, an advocate representing the plaintiff in the said suit had, sworn to the affidavit filed in support of the application. In Amin Lal V. Shib Dayal and others (3 supra) the learned Judge of Lahore High Court observed that “ In this case the plaintiff had engaged a pleader and if the pleader was not present it was for the plaintiff to show why the pleader was not present. In Amin Lal V. Shib Dayal and others (3 supra) the learned Judge of Lahore High Court observed that “ In this case the plaintiff had engaged a pleader and if the pleader was not present it was for the plaintiff to show why the pleader was not present. When the party has a recognized agent or a pleader for the purpose of appearance the mere fact that the person chosen by him is negligent is not a ground for restoring the suit, though it may be ground for a suit for damages against the agent or pleader.” Strong reliance was placed on a decision of the Apex Court in Calcutta Port Trust V. Shalimar Tar Products Ltd., (2 supra) wherein it was held that in a suit for arrears of rent where the defendant conceded lower rent than claimed in the suit and the plaintiff did not appear, the dismissal of the entire suit is not proper and the suit should have been decreed at conceded rate. While dealing with the Civil Rules of Practice and also the nature of the affidavits to be filed in support of interlocutory applications, this Court in G.Satyanarayana V. M.Shankar (1 supra) observed at paragraph 9 as hereunder. “ Apropos the other contention that the affidavit in this case was given by the clerk of the counsel in support of the petition but not by the party himself, certain Civil Rules of Practice are to be noticed. Rule 59 under Civil Rules of Practice obligates that every interlocutory application shall be supported by an affidavit and copies of the application, affidavit, and the documents annexed to the affidavit, if any, which are intended to be used by the deponent, shall be furnished to the opposite side. As per Rule 54, the interlocutory application shall state the provision of law under which it is made and the relief sought for in clear and precise terms and it shall be signed either by the applicant or by his counsel. As per Rule 48, every affidavit should contain the statements made on information or belief of the deponent and shall further contain the source or ground of information or belief. As per Rule 48, every affidavit should contain the statements made on information or belief of the deponent and shall further contain the source or ground of information or belief. A combined reading of these Rules of Practice prescribed by the High Court with the previous approval of the Governor of Andhra Pradesh, shows that the interlocutory application need not necessarily be signed by the party himself. It can either be signed by the party himself or his counsel. Every interlocutory application shall be accompanied by an affidavit, which affidavit should contain the statement of facts made on information or belief of the deponent and the source or ground of such information or belief. Now here, it has been mentioned that the affidavit filed in support of the petition shall be given by the party himself. Anybody, who is conversant with the statement of facts, which are necessary to be furnished for maintaining an interlocutory application, can, therefore, give the affidavit. I am reinforced in my above view by a judgment of this Court in Hussaini Begum vs. B.Ramachand raiah.” 9. It is no doubt true that normally an application should be supported by an affidavit of the party preferably or the deponent should be a person who has knowledge about the facts sworn to in the affidavit. Quite often the courts do come across this situation where the learned advocates or the advocate clerks would be filing affidavits in courts along with the applications. Unless and until the facts specified are within their knowledge and domain only normally this practice not to be permitted. However, in the peculiar facts and circumstances, especially taking into consideration the stand taken in the written statement filed by the respondent-defendant, this Court is of the considered opinion that dismissal of the application by the learned judge cannot be justified. Equally, the blameworthy conduct of the appellant-plaintiff also cannot be totally ignored. When costs had been imposed, it is the bounden duty of the party or the counsel to obey the said order. 10. Equally, the blameworthy conduct of the appellant-plaintiff also cannot be totally ignored. When costs had been imposed, it is the bounden duty of the party or the counsel to obey the said order. 10. Taking the peculiar facts and circumstances into consideration this Court is of the considered opinion that the impugned order be set aside on condition of the appellant-plaintiff depositing costs of Rs.1,000/- (Rupees one thousand only) or paying Rs.1,000/- (Rupees one thousand only) to the counsel representing the respondentdefendant before this Court on obtaining receipt from the said counsel within a period of two weeks from today. 11. Accordingly, the civil miscellaneous appeal is hereby allowed subject to the condition specified supra. No costs. --X-