Application for restoration – Dismissal on ground that petition and affidavit were signed by counsel and not by party: CPC 1908 Order 9, Rule, 9

Cases were filed by spouses against each other before the Family court. Husband filed petition for joint trial of all the cases. On the date of hearing, counsel for the husband was not present and the petitions filed by the husband were dismissed for default. The counsel filed a petition to restore the cases and the affidavit in support of the petition was sworn by the counsel. The Family Court dismissed the petition on the ground that the petition and the affidavit were signed by the counsel and not by the party. Appeal was filed by the petitioner contending that the counsel was authorised to swear the affidavit and file the petition for restoration.

The Court held that 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. Thus, it was held that there was sufficient cause for the petitioner’s counsel for presenting the above petition in the Family Court and it cannot be said that the petition, filed by a lawyer is not in accordance with the law. Therefore, the order dismissing petition to restore the cases passed by the Family Court was set aside.