IN THE SUPREME COURT OF INDIA CIVIL APPELLATE 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."

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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 with petitioner."

Learned counsel  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.

Learned counsel 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.

The General Rules(Civil), 1957 framed by the High Court in exercise of its

jurisdiction under Article 227 of  

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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:

"27. Person 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.

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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.   

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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 order.

The appeal is allowed.

                           ......................J.       [S.B. SINHA]

......................J.       [CYRIAC JOSEPH]

New Delhi, August 1, 2008.

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