[1] By this application under Section 115 read with Section 151 of the Code of Civil Procedure, the petitioners who were the defendants in Title Suit No. 123 of 2008 have challenged the order dated 08.08.2012 passed by the learned Civil Judge No.2, Kamrup, in Misc.(J) Case No. 86 of 2011 restoring the case to file under Order IX Rule 9 of the Code of Civil Procedure.
[2] The respondents as plaintiffs instituted Title Suit No. 123 of 2008 in the Court of Civil Judge ( Senior Division) No.1,Kamrup, Guwahati, against the present petitioners and others praying for a decree for declaring that public notice issued in the âHindustan Times on 06.06.2007 is false, defamatory and malicious and that a decree be passed for a sum of Rs.25,00,00,000/- against the defendants towards damages and compensation for such defamation and for future interest apart from decree of permanent injunction. During pendency of the suit, the learned engaged counsel of the plaintiff informed the Court on 06.05.2010 about his intention to withdraw from the case on the next date. Accordingly, the case was fixed on 14.06.2010 for steps before preemptory hearing. On that day although the Presiding Officer of the Court was on leave, but both sides were represent through their learned counsel and learned counsel for the plaintiff filed a petition being No. 1713 of 2010 under Order III Rule 4 (2) of the Code of Civil Procedure praying for granting leave to determine appointment as pleader for the plaintiff. This application was verified by three advocates appointed by the plaintiff stating that on 05.12.2009 advocate of the plaintiff Sri Satyen Sarma wrote a registered letter with acknowledgement due to the plaintiff asking for the pending professional bills and as there was no response from the side of the plaintiff it was not possible to conduct the suit and the Vakalatnama. The A/D card was duly returned to the sender. On request by the plaintiff the Vakalatnama was not withdrawn. Thereafter, another registered letter with A/D was sent on 24.03.2010 to the plaintiff and that letter was returned unserved with postal remark âaddressee not foundâ. However, thereafter one Anupam Bordoloi collected the brief from Satyen Sarma advocate on 31.05.2010 acknowledging receipt on behalf of the plaintiff and so, the learned counsel prayed for leave to determine their Vakalatnama from the suit with a consequent notice to the plaintiff in this respect.
[3] The day this application was filed, the Presiding Officer of this Court was on leave and so, 23.07.2010 was fixed for necessary order and appearance of the plaintiff. On the next date, i.e. 23.07.2010 the plaintiff was absent without any step but defendants were present through their counsel and so Court issued notice to the plaintiff fixing 27.08.2010 for notice report and for appearance of the plaintiff. This order was passed under signature of the Presiding Officer. On 27.08.2010 the plaintiff continued to remain absent without any steps but defendants were present and the Civil judge No.2 passed the following order:
âThe plaintiff is absent without step. The Defendants are present. On two consecutive dates, the plaintiff is absent without steps. Case is dismissed on account of non-prosecution. All Misc. Cases are also dismissed accordingly.â
[4] Thereafter on 22.09.2010 i.e. within 30 days from the date of dismissal of the suit for default an application was filed by one Ms. Nitu Hawalia advocate on behalf of the plaintiff purportedly under Order IX Rule 4 read with Section 151 of the Code of Civil Procedure praying for restoration of the suit by setting aside the order dated 27.08.2010, whereby the suit of the plaintiff was dismissed for default. It was stated in the said application that the plaintiff engaged a set of learned counsel at Guwahati for conducting the case on their behalf, but on the date fixed for taking steps, the said counsel failed to take steps for which the suit was dismissed for default on 27.08.2010 for not taking of steps. It is alleged therein that the originally engaged counsel of the plaintiff discontinued to keep the plaintiff informed about the development in the case and so, plaintiff was at dark in this regard. Plaintiff came to know about the dismissal of the suit for default only on 20.09.2010 through subsequently engaged counsel Ms. Nitu Hawelia and accordingly, the application was filed for restoration of the suit. The application was supported by an affidavit sworn by advocate Ms. Nitu Hawelia.
[5] It is stated that an objection was raised by the defendants about maintainability of the application on the ground that the application for restoration was supported by an affidavit sworn by learned counsel and not by party and so, a fresh application was filed by the plaintiff on 18.05.2011 supported by affidavit of plaintiff No.1. In this application it was stated that filing of the subsequent application became necessary in view of objection raised by the defendants as to maintainability as aforesaid and so subsequently engaged counsel Ms. Nitu Hawelia returned the brief to the plaintiff as a controversy had been raised against her by the defendants with the Bar Council of India. It is for this reason the present set of counsel were engaged by the plaintiff for filing an application afresh. At Paragraphs-6 and 7, therefore, the plaintiff narrated the facts and explained the reason for delay for filing subsequent application for restoration of the suit. This application was also opposed by the defendants and the learned Court after hearing the parties passed the impugned order on 08.08.2012 recalling order dismissing the suit for default and restoring the suit to file. This application has been brought under challenge in the present revision petition.
[6] I have heard Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. S.K. Medhi, learned counsel for the petitioner. Also heard Mr. R.K. Aggarwal, the respondent in person.
[7] Mr. K.N. Choudhury, learned Senior Counsel for the petitioner has submitted that the impugned order needs to be set aside on two grounds. First, that application filed on 18.05.2011 allowed by the learned Court on 08.08.2012 itself was barred by limitation and in the absence of application filed for condonation of delay, the learned Court had no jurisdiction to entertain the same. Consequently, order dated 08.08.2012 being without jurisdiction is liable to be set aside. Secondly, the plaintiff was aware about the notice issued to him by the Court and more over files from the chambers of the engaged counsel was also collected by the plaintiff on 31.05.2010 as disclosed in Paragraph-4 of the application under Order III Rule 4 (2) of the Code of Civil Procedure and as such the plaintiff ought to have appeared on the subsequent dates and at least on 28.07.2010 before the learned trial Court. Failure of the plaintiff to appear on 28.07.2010, therefore, is fatal and so learned trial court committed error in recalling the order for dismissal of default and in restoring the suit to file.
 [8] Per contra, Mr. R.K. Aggarawal, respondent in person, would argue that 27.08.2010 was the date fixed for notice report and appearance of the plaintiff. It was not the date fixed for hearing and so, learned Court committed error in dismissing the suit for default on that day. He also would argue that the learned Court did not arrive at a finding that the notice issued to the plaintiff by the previous order dated 23.07.2010 was served on the plaintiff. In the absence of satisfaction of the Court to that effect the learned Court could not have dismissed the suit for default. Besides that 27.08.2010 was the date fixed for consideration of the application under Order III Rule 4(2) of the Code of Civil Procedure and if at all any order would have been passed on that day after service of notice on the plaintiff, in that event the learned Court could have passed only an order determining the Vakalatnama of the plaintiff and till such an order is passed, the appointment of the counsel would continue to remained in force. It is the case of the respondent that their engaged counsel did not take steps as authorised and remained absent without taking any steps on 27.08.2010 and that notice issued vide order dated 23.07.2010 was not received by them and so, passing an order on 23.07.2010 without arriving at a finding as to service of notice on the plaintiff was unauthorised. The learned trial court considered this matter and passed the impugned order dated 08.08.2012 restoring the suit to file. The plea of limitation also could not have arisen as the first application filed by the plaintiff through second counsel Ms. Nitu Hawelia was filed within time and the subsequent application was only filed as a matter of abundant caution to regularize the defect of verification and affidavit. Explanation was given in the second application in Paragraphs-6, 7 and 8 in regard to delay which is supported by affidavit and so it is not correct to say that there was no explanation for delay from the side of the plaintiff.
[9] Having heard the learned counsel for the parties and on perusal of the materials available on record including the impugned order dated 08.08.2012 it appears that the learned Court took into consideration the fact that there was no mention about service of notice on the plaintiff pursuant to order dated 23.07.2010. Having so found the learned Court was satisfied that petitioner was prevented by sufficient cause from appearing on 27.08.2010 and consequently application under Order IX Rule 9 of the Code of Civil Procedure was liable to be allowed and accordingly, the application was allowed, restoring the suit to file with cost of Rs.3,000/-. The facts which has been conspicuous in this proceeding is that an application was moved by the engaged counsel of the plaintiff on 14.06.2010 praying to determine their appointment as pleader of plaintiff. The prayer made in the application was to allow the advocates of the plaintiff to determine their Vakalatnama from the suit and also for issuance of notice to the plaintiff in this regard if they were not present. The prayer part of the application is quoted below:
 âThat, this petition is made bona-fide and in the interest of justice.
It is, therefore, prayed that the Honble Court would be pleased to allow the Advocates of the Plaintniff to determine their Vakalatnama from the aforesaid suit and a Notice may be issued to the Plaintiff, if not present, for the ends of justice.
And for this act, the Advocates for Plaintiff as in duty bound, shall ever pray.â
[10] Now, this application came up for consideration before the learned Court on 27.08.2010 on which date neither the plaintiff nor his engaged counsel were present in the Court. Since by order dated 23.07.2010, this date was fixed for notice report and for appearance of the plaintiff and plaintiff was not present before the Court, the first thing which the learned Court was required to satisfy itself was about service of notice on the plaintiff. In the absence of service on the plaintiff the Second part of the prayer made in the application under Order III Rule 4(2) as referred to above ought not to have been taken up for consideration by the Court. The learned Counsel for the plaintiff themselves made prayer that if plaintiff was not present then notice is to be issued to the plaintiff consequent to leave to the engaged counsel to determine their Vakalatnama. The learned Court, therefore, was duty bound to satisfy itself as to whether notice was served on the plaintiff as directed by the Court on 23.07.2010 and if it was found that despite service of notice vide order dated 23.07.2010 plaintiff did not appear in that event what the Court could have done is to allow the application under Order III Rule 4(2) of the Code of Civil Procedure and thereupon , to issue further notice to the plaintiff informing him about such withdrawal of counsel asking him to engage any other counsel of his choice and/ or to make any other arrangement.
[11] The learned Court neither allowed the application under Order III Rule 4 (2) of the Code of Civil Procedure nor deed he record any finding as to service of notice upon the plaintiff. Order III Rule 4(2) of the Code of Civil Procedure provides that appointment of a pleader under Rule 4(1) shall be deemed to be in force until determined with the leave of the Court. This contemplates that there has to be a specific order of the Court granting leave to the pleader to determine the appointment and till the same is done the contract between the party and the pleader would continue to remain in force. Here in this case, no such leave has been granted and so the first set of counsel who had filed application for determining Vakalatnama legally continued to remain as the appointed pleader of the plaintiff. So their absence on the fixed date cannot be considered to be a failure on the part of the plaintiff to appear on that day. Besides, engaged counsel in their application under Order III Rule 4(2) itself made prayer for issuance of notice upon the plaintiff. This prayer was made after prayer to grant leave to determine Vakalatnama by a conjunctive âand. It implies that once leave is granted allowing the pleader to terminate appointment, the plaintiff should be intimated for alternative arrangement. This is because otherwise any engaged pleader for filing application may determine appointment unilaterally and party appointing the said counsel may remain in dark about such development and consequently prejudice is likely to be caused against him. Even in the present case if the version of the plaintiff is to be accepted then plaintiff was not aware about withdrawal from the case on 27.08.2010 and so he engaged advocate Ms. Nitu Hawelia to get the information about the suit. It is advocate Ms. Nitu Hawelia who informed them that suit had been dismissed for default on 28.07.2010.
[12] Mr. K. N. Choudhury, learned Senior Counsel for the petitioner further submits that plaintiff was aware about the withdrawal of the counsel from the suit and this is why the plaintiff engaged Anupam Bordoloi to collect the brief from the chambers of the learned counsel who accordingly collected the brief from the learned counsel issuing receipt and acknowledgement. But the question as to whether the brief was handed over by the engaged counsel to aforesaid Anupam Bordoloi and whether this Anupam Bordoloi was an agent or employee of the plaintiff is also not established. While passing order on 28.07.2010 it was not in the consideration of the learned Court that brief had been returned to the plaintiff through said Anupam Bordoloi. Had it been the case there would have been necessity for issuing notice to the plaintiff on 23.07.2010. The order dated 23.07.2010 does not contain any discussion even in this regard and so it cannot be presumed that alleged receipt of Anupam Bordoloi would constitute the foundation for passing of the order. The submission of the learned Senior Counsel, therefore, in regard to receipt of brief by Anupam Bordoloi to support order dated 28.07.2010 is not borne out in the order dated 28.07.2010. The only consideration for passing the order dated 28.07.2010 as are discernible from recital of the order is that plaintiff was absent without step and that event on the previous date the plaintiff was absent without step. It is only these two grounds on which the learned trial court had dismissed the suit for default.
[13] The validity or correctness of the order has to be decided on the basis of the grounds basing on which the order has been passed. This being the position the learned Trial Court committed no error in passing the impugned order dated 08.08.2012 in deciding the correctness of the order dated 27.08.2010.
[14] The order dated 27.08.2010 being not in conformity the provisions of Order III Rule 4(2) of the Code of Civil Procedure and even in terms of the prayer made in the application filed by the originally engaged advocates, the learned trial court was right in observing in the impugned order that there was error in not arriving at finding as to service of notice on the plaintiff upon this application. Besides orders by trial court in a suit for default on a date not fixed for hearing was deprecated by this Court in a earlier judgment in the case of Nazrul Islam Borbhuiya vs. Yakub Ciddikie reported in 2006 (3) GLT 828. In view of the matter the order dated 08.08.2012 restoring the suti to file cannot be said to be vitiated for jurisdictional error and so there is no scope to interfere with it in exercise of revisional jurisdiction. The order dated 08.08.2012 is accordingly upheld and revision petition is hereby dismissed.
[15] No order as to cost.