::1:: APHC010208172019 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3329] TUESDAY,THE TWENTY FOURTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE VENKATESWARLU NIMMAGADDA C.M.A.No. 466/2019 and C.R.P.No.1932 of 2019 C.M.A.No.466/2019 Between: 1. RAJANA ANTHONAMMA, W/O ARJUNA, AGED 43 YEARS, HOUSEHOLD DUTIES, RESIDING AT D.NO.36- 96-46, RAMJEE ESTATE, KANCHARAPALEM, VISAKHAPATNAM ...APPELLANT AND 1. GANDRETI MARIAKUMAR, S/o Late G. Jolayya, aged 28 years, working in Naval Base, Visakhapatnam, Rio D. No. 39-96-47, Ramjee Estate, Kancharapalem, Visakhapatnam. ...RESPONDENT Appeal Under Section_____against ordersMemorandum of Civil Revision Petition against the order and decree dated 02.04.2019 passed in I.A. No. 737 of 2017 in AS No. 35 of 2017 on the file of the Court of the Special Sessions Judge for Trial of ::2:: Cases under SCs and STs (POA) Act-cum-XI Additional District and Sessions Judge at Visakhapatnam C.R.P.No.1932 of 2019 Between: 1. RAJANA ANTHONAMMA, W/O ARJUNA, AGED 43 YEARS, HOUSEHOLD DUTIES, RESIDING AT D.NO.36- 96-46, RAMJEE ESTATE, KANCHARAPALEM, VISAKHAPATNAM ...PETITIONER AND 1. GANDRETI MARIAKUMAR, S/o Late G. Jolayya, aged 28 years, working in Naval Base, Visakhapatnam, R/o D.No. 39-96-47, Ramjee Estate, Kancharapalem, Visakhapatnam. ...RESPONDENT Petition under Article 227 of the Constitution of India,praying that in the circumstances stated in the grounds filed herein,the High Court may be pleased toMemorandum of Civil Revision Petition against the order and decree dated 02.04.2019 passed in I.A.No. 736 of 2017 in AS No. 35 of 2017 on the file of the Court of the XII Additional District-cum-SCs and STs Court at Visakhapatnam Counsel for the Appellant: 1. ARRABOLU SAI NAVEEN Counsel for the Respondent: 1. ::3:: HON’BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA C.M.A.No.466 of 2019 AND C.R.P.No.1932 of 2019 This Court made the following COMMON JUDGMENT: The present CMA No.466 of 2019 is filed aggrieved by the order dated 02.04.2019 in I.A.No.737 of 2017 in A.S. No.35 of 2017 on the file of Special Sessions Judge for Trial of Cases under SC & ST (POA) Act-cum-XI Additional District Judge, Visakhapatnam wherein the application filed under Order IX Rule 9 to set aside the “dismissed for default” order dated 15.06.2017 and to restore the appeal on the file of lower appellate Court. 2. The C.R.P.No.1932 of 2019 is filed aggrieved by the order dated 02.04.2019 in I.A.No.737 of 2017 on the file of Special Sessions Judge for Trial of Cases under SC & ST (POA) Act- cum-XI Additional District Judge, Visakhapatnam wherein the application filed under Section 5 of Limitation Act, read with 151 of CPC to condone the delay of 90 days in filing the petition under Order IX Rule 9 of CPC has been dismissed. ::4:: 3. Bothe petitions were heard together since both parties are common in both these proceedings and the issue as well as relief sought by the appellant/petitioner is one and the same. Therefore, it is appropriate to pass a common order as under: 4. The petitioner/appellant herein is the plaintiff and the respondent herein is defendant in the suit. For the sake of convenience of this Court the parties are referred herein as they were arrayed before the trial Court. 5. The plaintiff filed suit for permanent injunction and for costs. It appears that the said suit was dismissed by way of decree and judgment dated 03.01.2017 in O.S.No.1006 of 2012 but the same was assailed in the month of March, 2017 and the matter was posted to 27.03.2017 for appearance of the defendant. While so, on 15.06.2017 the matter was called for but neither the plaintiff nor his counsel represented the matter. Then the appellate Court dismissed the appeal for non-prosecution on the same day i.e., on 15.06.2017 itself. 6. Learned counsel for the petitioner submits that petitioner filed present I.A.No.737 of 2017 in A.S.No.35 of 2017 under Order IX Rule 9 of CPC praying to set aside the order of default and restore ::5:: the appeal to proceed further for disposal of the same on merits. Learned counsel for the petitioner submits that the counsel on record filed the affidavit as well as verification on behalf of the plaintiff since the appeal suit was dismissed for default for non-appearance of the petitioner‟s counsel. Therefore, filing of affidavit by the counsel on behalf of the plaintiff is legally valid and duly explained reasons for which he did not represented the matter on 15.06.2017. He also submits that there is a fault on the part of the counsel for plaintiff. Therefore, filing of affidavit and verification in support of the application is not a new practice, it is a settled practice and it was accepted and held that Advocate‟s counsel on record who were given original Vakalathnama can file affidavits and petitions on behalf of his client. But contrary to the settled proposition, the Court below dismissed the applications in I.A.No.737 of 2017 and I.A.No.736 of 2017 in A.S.No.35 of 2017 filed under Order IX Rule 9 of CPC and under Section 5 of Limitation Act respectively on the sole ground that the Advocate on record cannot be permitted to file Affidavit along with verification without giving any reasons why the petitioner did not choose to file the same. Learned counsel for petitioner contended that the Court below erroneously dismissed the ::6:: applications, which is contrary to law and to substantiate his case he relied upon the following judgments: 1. T. Krishnaswamy vs. Maniyamma 1 2. Balakrishnan vs. Geetha N.G2 3. R.M. Bedi vs. Vijayeswari Textiles Ltd, Federated Mercandising Group, India3 7. Learned counsel further argued that in view of ratio laid down in the above three judgments, the order of the Court below is liable to be set aside and to direct to restore the suit appeal and to proceed further on merits. Even though notices were served, none appeared on behalf of the respondent. 8. Heard learned counsel for the petitioner and perused the material placed on record. 9. The core issue fell for consideration before this Court is in this CMA No.466 of 2019 as well as C.R.P.No.1932 of 2019 that whether the Advocate on record / counsel for the plaintiff can be permited to file affidavit and verification on behalf of his client on the ground that he is holding original Vakalathnama or not ? 1 2000(6) ALD 290 2 2015 AIR (Ker) 223 3 2007 (2) MadLJ 1162 ::7:: 10. On perusal of the orders passed by the Court below, it is observed that the Court below arrived a conclusion in terms of a reported judgment i.e., Premier Chemical Industries vs. Member Convener and Joint (AIR 2006 (AP) 242), wherein this Hon‟ble Court categorically discussed who is pleader, what is vakalatanama and the competence of the advocate to represent the case and finally held that the Advocate acting under Vakalatanama is not permitted and cannot file an application on behalf of parties. It is further held that the practice of Advocates filing affidavits on behalf of parties seeking redressal is not proper and on affidavit filed by the advocates appearing for parties, no relief can be granted to the petitioner. The court below observed that the ratio laid by this Hon‟le Court as stated supra squarely applicable to the facts of this case on hand. No reason was assigned by the counsel of the petitioner for non-filing the petition by the petitioner himself and also no reason was illustrated for filing of the affidavit by the counsel along with verification. At best the counsel of the petitioner can give third party affidavit in support of the contention of petitioner. But the petitioner counsel is not entitled to file this application on behalf of party with his affidavit along with verification. Therefore, the Court below dismissed both applications on the sole ground that the counsel for ::8:: the petitioner is not entitled to file sworn affidavit on behalf of the petitioner without assigning proper reasons. As contended by the learned counsel for the petitioner, the said conclusion was deferred by this Court as well as High Court of Kerala, Madras High Court as under: (a) In T. Krishnaswamy vs. Maniyamma (Supra 1) the erstwhile High Court of Andhra Pradesh held as under: “8. The reasoning appears to be Section 5 of the Limitation Act mentions the „appellant or the applicant‟ and inasmuch as in this case „applicant‟ i.e., the petitioner has not filed his affidavit and at any rate his advocate has filed his affidavit, hence the petition is not maintainable. It is a strange reasoning and difficult to appreciate. The learned Junior Judge seems to be obvious of the provisions in Order III of CPC. Order III, Rule 1 of CPC contemplates that any appearance, application or act in or to any Court required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for time being in force, be made or done by the party in person, or by his recognized agent or by a pleader appearing, applying or acting, as the case may be, on his behalf. Thus, an advocate appearing for a party can make an appearance, application or do an act in any Court on behalf of the party whom he represents. 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. Thus the solitary ground on which the petition under Section 5 of the Limitation Act has been dismissed cannot be sustained. (b) In Balakrishnan vs. Geetha N.G (Supra 2) the High Court of Kerala observed as under: “7. In view of the above and in disagreement with the Courts below, I hold that Mr. B. Das, Advocate for the petitioner was authorized to act on her behalf in the suit and the proceedings arising therefrom. Therefore, the petition under O.9 R.9 signed and presented by him cannot be said as being not in accordance with law. ::9:: 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. From the facts and circumstances of the case, we find that there was sufficient cause for the petitioner‟s counsel for presenting the above petition in the Family Court and we cannot say that the petition filed by a lawyer is not in accordance with law. Therefore, the order passed by the Family Court is liable to be set aside. (c) In R.M. Bedi vs. Vijayeswari Textiles Ltd, Federated Mercandising Group, India (Supra 3) High Court of Madras held thus: “[16] Rule 13 of Sec.49(c) of the Advocate Act does not altogether bar an advocate from filing an affidavit in the interest of the client. Whenever an affidavit is filed on behalf of his party, he assumes the role of a witness. The Court has got a discretionary power to cross-examine the witness, at the instance of either party and that he has to produce the best evidence to prove the contents of the affidavit. Before exercising the discretionary power, the Court should be convinced “that such a course is necessary, in the interest of justice. [17] Order 9 Rule 8 C.P.C applies when a suit is dismissed for default for non- appearance of the counsel and the party, the suit can be restored on the plaintiff establishing a good cause for his non-appearance. When a suit is dismissed for non-prosecution and absence of plaintiff‟s Counsel, the remedy open to him is to file an application for restoration. In a given case, where the plaintiff instructs his lawyer to seek for an adjournment for some reasons, such as sickness, bereavement in his family or he is unable to attend the Court for some bonafide reason, the party should not suffer for non- appearance of his counsel. If a counsel files an affidavit, he takes the risk of exposing himself as a witness to the case. The legal practioners are certainly the agents of the parties in a case and for the fault of the agents, the clients should not suffer. It is the duty of the counsel engaged for conducting a case on behalf of the party to appear on that day, when the matter is listed for hearing. Once the Counsel is engaged as a pleader by his client, the authority to represent his client continues to remain in force. [21] As stated supra, Order 9 Rule 8 C.P.C is applicable to the case, where there is dismissal for default both for non-appearance of the Counsel as well as for the party. In view of the above discussion, the order of the Lower Court is set aside and the Additional District and Sessions Judge, Fast Track Court III, Coimbatore is directed to take up the matter for trial and provide sufficient opportunity to the parties to let in evidence. In the result, the Civil Miscellaneous Appeal is allowed. No costs.” ::10:: 11. On perusal of the judgments rendered by this Court as well as High Court of Madras, High Court of Kerala, which reveals that the counsel for plaintiff/petitioner can file affidavit on behalf of his client under Order IX Rule 9 of CPC which is filed for restoration of the suit, which was dismissed for default for non-appearance of the petitioner as well as counsel for the petitioner. 12. The Madras High Court further discussed that non- appearance of the counsel for plaintiff was also caused for dismissal of the suit. Therefore, since there is a fault on the part of the counsel on record along with the petitioner, therefore even though the petitions filed by the counsel for the petitioner in similar circumstances under Order IX Rule 9 as well as delay condonation petition under Section 5 of Limitation Act are valid and legally sustainable. Hence the orders dated 01.04.2019 in I.A.No.736 of 2017 in A.S.No.35 of 2017 and I.A.No.737 of 2017 in A.S.No.35 of 2017 on the file of Special Sessions Judge for Trial of Cases under SC & ST (POA) Act-cum-XI Additional District Judge, Visakhapatnam are liable to be set aside. The order dismissal for default is due to non-appearance on part of the counsel also, therefore it is the core responsibility of counsel to see that matter ::11:: should be disposed of on merits. More so, in the instant case the counsel must have the personal knowledge about the cause for the order of dismissal. Therefore, he is also an appropriate person to file an affidavit under order IX Rule 9 petition on behalf of the petitioner as held by the Courts. Further, the lower appellate Court is directed to restore the matters and proceed further on merits and dispose of the same at the earliest. However, the petitioner herein undertakes to cooperate with the Court below for early disposal of the appeal without seeking any adjournments unless there is a reasonable cause. 13. Accordingly, the C.M.A.No.466 of 2019 and C.R.P.No.1932 of 2019 are allowed. As a sequel, interlocutory applications, if any pending, shall stand closed. _________________________________ VENKATESWARLU NIMMAGADDA, J DT: 24.02.2026 NOTE: Issue CC by 02.03.2026 (B/o) krk ::12:: HON’BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA C.M.A.No.466 of 2019 AND C.R.P.No.1932 of 2019 Dt: 24.02.2026 NOTE: Issue CC by 02.03.2026 (B/o) krk 191