Civil Procedure Code (CPC)

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Suri.Sravan Kumar (senior)     17 May 2015

Restoration of petition can be filed by advocate with his si

Apex Court had occasion to consider the same legal question in 

Ananta Pandu Porobo Desai and others v. Lalita Poi [(1978) 2 SCC 681(1)]

in which it is held as follows: 

"Mr. Vineet Kumar, who appears 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 could file an application for restoration of the suit on the authority of the original vakalatnama executed by the plaintiff in his favour.

2. On the merits, it is in the interests of justice that the order dismissing the suit for default be set aside and the suit restored to file. We accordingly direct that the trial Court will restore the suit and dispose it of in accordance with law. The appellants shall pay the costs of this appeal to the respondent, which we quantify at Rs.1000, as a condition precedent to the restoration of the suit. The costs of the suit, from its institution until its disposal hereafter, shall be paid by the appellants to the respondent in any event. The appeal is disposed of accordingly." 

Therefore, the above decision of the Apex Court shows that a suit, which was dismissed for default, can be restored to file under Order IX Rule 9 of the Code on the basis of an application made by the Advocate on the strength of vakalatnama executed by the plaintiff in his favour in the interest of justice. The order of dismissing the suit for default can be set aside and the suit restored to the original file. Accordingly, the Apex Court directed the trial Court to restore the suit and dispose of it accordingly to law. Therefore, a lawyer could file a petition, on behalf of the party he represents, under Order IX Rule 9 of Code of Civil Procedure duly signed by him on behalf of the party he represents, even though the vakalatnama did not expressly authorise an Advocate to file an application for restoration. If the Court is satisfied that there was no express prohibition in doing so, it has to assume that the counsel had implied authority to file such application.

Therefore, by virtue of vakalatnama, without having any special authority, it is presumed that counsel had an implied authority to present a petition under Order IX Rule 9 of the Code, duly signed by him for the party he represents

 



 1 Replies

ROHIT SHARMA (Legal Advisor )     17 May 2015

Dear Mr. S. Sravan Kumar,

1. Well, the new advocate can have the vakaltnama of the plaintiff and even if there is no expression to such effect that use such vakaltnama be used for restoration of the previous suit of the plaintiff the court will accept such vakaltnama and proceed with procedings of restortaion of the suit - but supposing when it comes to pay the defenddant the cost of  restoration and the the court fees and if the plaintiff (applelallant) then denies that he had not given such specific instructions to the advcate to use the vakalatnama singed by him then will the advocate himslef bear such cost as dirceted by the Court ?  So, have such specifc words endorsed on the vakatnama by the appleeant that he intends to file petition for restorration of his earlier suit and will be bound to pay such cost to the defendanat and bear the cost of court fees for restoration proceedings. 

 


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