Telangana High Court

Nmdc Limited vs M/S. Maa Kali Alloys Udyog Private ... on 5 February, 2024

HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

                        C.M.A. No.570 of 2022
JUDGMENT:

This CMA is filed assailing the order dated 13.10.2022

passed in I.A.No.486 of 2019 in OS.No.28 of 2014 on the file of

XIV Additional Chief Judge, City Civil Court at Hyderabad.

2. Heard the submissions of Sri K.Raghavacharyulu, learned

counsel for the appellant, and Sri Shyam Sunder Agarwal, learned

counsel for the respondent.

3. The brief facts leading to filing of the present appeal are as

under:

The appellant/plaintiff filed I.A.No.486 of 2019 in

O.S.No.28 of 2014 seeking to set-aside the order, dated

21.11.2019, by which the suit filed by it was dismissed for default.

The affidavit filed in support of application in I.A.No.486 of 2019

was sworn by the junior counsel representing the appellant. The

reasons for non-appearance on 21.11.2019, as set out in the

affidavit, are that the Junior Counsel had wrongly noted the date of

hearing of the case as '29.11.2019', instead of '21.11.2019'. The

learned junior counsel, while verifying the status of the case on

Online, noticed that the case was dismissed for default on

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21.11.2019. Immediately, he filed I.A.No.486 of 2019 before the

trial Court seeking to set aside the dismissal order.

4. The trial Court, on perusal of the docket proceedings and the

affidavit filed by the junior colleague of the advocate on record for

the appellant, observed that the appellant was not diligent in

pursuing the matter. The trial Court further observed that the

affidavit was filed by the Junior colleague of the advocate on

record, swearing to the facts which are concerned only to the client

and as such, it amounts to professional misconduct and thus, came

to a conclusion that the application was not maintainable on the

said ground alone. The trial Court also further observed that suit

was filed by the appellant and therefore, the burden lies on it to

prove its claim at the earliest by pursuing the matter and the

appellant cannot be so careless and waste the precious time of the

Court and finally, came to a conclusion that if the application is

allowed, it amounts to abuse of process of law and also amounts to

harassing the respondent and accordingly, dismissed the I.A.

5. Learned counsel for the appellant would submit that on

previous date of hearing of the case i.e., 12.11.2019, the counsel on

record was not available and therefore, the junior colleague of the

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advocate on record represented the matter on behalf of learned

counsel for the appellant/plaintiff. The junior counsel wrongly

noted the next date of hearing of the case as '29.11.2019' instead

of '21.11.2019' and as such, he could not represent the matter on

21.11.2019. On 21.11.2019, as there was no representation on

behalf of the appellant, the trial Court dismissed the suit for

default. As such, the junior counsel has filed affidavit in support of

application i.e., I.A.No.486 of 2019 in O.S.No.28 of 2014 for

restoration of the suit. There is no illegality or infirmity in

swearing the affidavit, filed in support of the application, by the

junior colleague and there is no bar to file such an application by

the counsel on record.

6. To buttress his submissions, learned counsel for the

appellant relied upon the judgment of the Hon'ble Apex Court in

Ananta Pandu Porobo Desai and others vs. Smt.Lalita POI 1

wherein at paragraphs-1 and 2 of the said judgment, the Hon'ble

Apex Court observed that the counsel appearing on behalf of the

respondent has not been able to contest the position that the very

same advocate who appeared in the suit on behalf of the plaintiff

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could file an application for restoration of the suit on the authority

of the original vakalatnama executed by the plaintiff in his favour

and therefore, set-aside the order and restored the suit to file.

7. Learned counsel for appellant also relied upon the judgment

of this Court in G.Satyanarayana vs. M.Shankar 2, wherein at

paragraph-9 of the said judgment, a learned single Judge of the

composite High Court of A.P. by referring to Rules 59, 54 and 48

of Civil Rules of Practice, held that affidavit of interlocutory

application need not be signed by a party himself or his counsel

and further held that nowhere 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.

8. Learned counsel for the respondent opposed the appeal and

submitted that the appellant is not diligent in pursuing the case, as

rightly observed by the trial Court. The petitioner filed evidence

affidavit after nearly 2 years 11 months. Further, the junior

colleague of learned counsel on record for the appellant has sworn

2001(1) ALT 365(S.B.)

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the affidavit filed in support of the application filed for restoration,

which is improper and impermissible. He relied upon the judgment

rendered by a learned single Judge of this Court in Pasupuleti

Subba Rao Vs. Nandavarapu Anjaneyulu 3, wherein it was held as

under:-

"The practice of advocate filing his affidavit in a petition filed under Order-IX Rule 9 CPC is totally wrong and improper. Such practice has to be deprecated. Order IX Rule 13 of CPC contemplates that the application has to be filed by the party concerned only and not by the counsel. The counsel only is permitted to represent his client; he cannot step into the shoes of a client. Admittedly this order passed by the learned Judge is totally wrong and illegal. But any way this practice is prevalent in the State of Andhra Pradesh. Therefore, as an exception this time the order is sustained. All concerned should note the law lay down by this Court. Under these circumstances only, this Court does not wish to interfere with the said order."

8(1). Learned counsel for the respondent further submitted that

the suit is filed in the year 2014 and the appellant has been taking

time and dragging the matter which is causing prejudice to the

respondent inasmuch, the respondent would be burdened with

interest, in case the suit, which is filed for recovery of money, is

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decreed against the respondent and hence, prayed for dismissal of

the appeal.

9. In reply, learned counsel for the appellant submitted that the

judgment referred to and relied upon by the learned counsel for the

respondent was overruled by a Division Bench of this Court in

G.Krishna Murthy Vs. Hemalatha Chit Funds Pvt Ltd.,

Hanamkonda, Warangal District and others 4, wherein at

paragraphs-21 to 23 of the said judgment it was held as under:-

"21.We are of the considered view that the abovementioned observations of the learned Single Judge of this Court (R.M. Bapat, J) in Pasupuleti Subba Rao's case (supra), are, in fact, not relevant inasmuch the A.P. Civil Rules of Practice, which are referred to above, were not considered. Therefore, the observations made by the learned Single Judge of this Court (R.M. Bapat, J) in Pasupuleti Subba Rao's case (supra) are of no consequence, since, despite those observations the learned Single Judge, as a special case in the particular fact-situation obtaining in that case, eventually accepted the affidavit signed by the Advocate.

22.It is well settled that the procedural laws are handmaid to justice. Technicalities and formalities should not be allowed to defeat the interests and ends of justice. What is required to be done by a Court is to do substantial

2006(4) ALD 42 (DB)

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justice to the parties, that too, on merits, de hors trivial technicalities and formalities.

23. From the above, it is clear that all the interlocutory applications need not necessarily be signed by the party himself or herself and an affidavit can be signed either by the party himself or by an advocate or anybody, including the clerk of an advocate, who is conversant with the statement of facts, which are necessary to be furnished for maintaining an interlocutory application."

10. In the present case, the suit was dismissed for default on

21.11.2019, since there was no representation on behalf of

appellant. The junior counsel, who represented the matter on

previous date of hearing, sworn the affidavit filed in support of

application under order IX Rule 9 of CPC, stated that the next date

of hearing of the case was wrongly noted by him as '29.11.2019'

instead of '21.11.2019'. The fact of representation of the matter by

junior advocate and wrong noting of the next date of hearing of the

case are within the knowledge of junior counsel and therefore, he is

the proper person to swear the affidavit.

11. In the light of above judgments referred to by the learned

counsel for the appellant, there is no bar in swearing the affidavit