Recently, the Andhra Pradesh High Court clarified that a counsel holding a valid vakalatnama can file affidavits and applications on behalf of a client to restore appeals dismissed for default, even when delays occur. The Court emphasized that “for the fault of the agents, the clients should not suffer,” highlighting the responsibility of the lower courts to consider merits over procedural technicalities.
Brief Facts:
The matter arose from a civil appeal challenging the dismissal of a suit for permanent injunction and costs. The plaintiff’s appeal was dismissed on 15.06.2017 for non-prosecution due to the absence of both the petitioner and his counsel. Subsequently, the petitioner filed applications under Order IX Rule 9 of the CPC seeking restoration of the appeal, and under Section 5 of the Limitation Act seeking condonation of the delay. The Special Sessions Judge for SC & ST (POA) Act cases in Visakhapatnam dismissed both applications solely on the ground that the counsel for the petitioner could not file affidavits on the client’s behalf without explicit reasons from the petitioner, triggering the present appeals.
Contentions of the Petitioner:
The petitioner argued that the counsel on record, holding the original vakalatnama, was legally authorized to file the affidavit and application to restore the appeal. Counsel contended that the non-appearance on 15.06.2017 was due to an oversight by the petitioner’s lawyer, not the client, and that procedural rules and precedent allow advocates to act on behalf of their clients.
To substantiate the claim, the petitioner relied on landmark judgments, including T. Krishnaswamy vs. Maniyamma, Balakrishnan vs. Geetha N.G., and R.M. Bedi vs. Vijayeswari Textiles Ltd., which affirm that advocates can file affidavits on behalf of clients and seek restoration of dismissed suits, provided there is sufficient cause and personal knowledge of the facts.
Contentions of the Respondent:
The respondent maintained that the lower court’s dismissal was proper under Premier Chemical Industries vs. Member Convener, asserting that a counsel cannot file an affidavit with verification on behalf of a client without explicit authorization or justification. They argued that permitting such filings could undermine procedural safeguards and allow circumvention of statutory limitations, insisting that the petitioner should have personally submitted the documents to support restoration.
Observations of the Court:
The Court undertook a detailed review of the precedent and procedural law, emphasizing the role of counsel under a vakalatnama. The Court observed that Order III Rule 1 CPC allows any act authorized by law to be performed by a recognized agent or pleader on behalf of a party. Citing T. Krishnaswamy, the Court noted, “Thus, there is no prohibition in an advocate filing an affidavit in respect of a matter in which he was appointed as an advocate on any question in relation to which he is in a position to depose.”
The Court further referred to Balakrishnan and R.M. Bedi, highlighting that non-appearance due to counsel’s fault should not prejudice the client, and the advocate assumes a quasi-witness role when filing affidavits. Critically, the Court emphasized the principle of substantive justice over procedural defaults, stating, “for the fault of the agents, the clients should not suffer,” underscoring the responsibility of counsel to act diligently while preserving clients’ rights.
The decision of the Court:
The High Court setting aside the lower court orders that denied restoration of the appeal and condonation of delay. The Court directed the lower appellate court to restore the appeal and dispose of it on merits at the earliest, emphasizing that an advocate holding a vakalatnama is competent to file affidavits and applications on behalf of their client when the appeal was dismissed for default.
Case Title: Rajana Anthonamma vs. Gandreti Mariakumar
Case No.: C.M.A.No. 466/2019
Coram: Justice Venkateswarlu Nimmagadda
Advocate for Petitioner: Adv. Arrabolu Sai Naveen
Advocate for Respondent: None
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