Case Note & Summary
The petitioners, Satkuntalabai and Sumanbai, along with others, filed Regular Civil Suit No. 17 of 2006 before the Civil Judge, Junior Division, Jintur, seeking a perpetual injunction against the respondents. They also filed an application for temporary injunction (Exh. 5). The trial court rejected the temporary injunction application on 18.9.2007. Aggrieved, the petitioners filed Miscellaneous Civil Appeal No. 47 of 2007 before the Adhoc Additional District Judge, Parbhani. On 2.12.2009, the appeal was dismissed for default due to the absence of the petitioners or their counsel. The petitioners then filed an application (Exh. 12) for restoration of the appeal, which was also dismissed by the same court on 2.12.2009. The petitioners challenged this dismissal order by filing a writ petition under Articles 226 and 227 of the Constitution of India before the Bombay High Court, Aurangabad Bench. The petitioners are illiterate and aged, and they had appointed Sheshrao Haral as their power of attorney holder to conduct the litigation. The power of attorney holder was absent on the date of hearing because he was undergoing medical treatment. The respondents opposed the restoration, arguing that the power of attorney holder could not represent the petitioners and that the cause shown was not sufficient. The High Court considered the facts and held that the power of attorney holder could represent the petitioners, especially since they were illiterate and aged. The court found that the absence of the power of attorney holder due to medical treatment constituted a sufficient cause for non-appearance. The court set aside the order dated 2.12.2009 dismissing the restoration application and directed that Miscellaneous Civil Appeal No. 47 of 2007 be restored to its original stage. The writ petition was allowed with no order as to costs.
Headnote
A) Civil Procedure - Restoration of Appeal - Dismissal for Default - Sufficient Cause - The petitioners' appeal was dismissed for default on 2.12.2009. The petitioners, being illiterate and aged, had entrusted the conduct of the appeal to their power of attorney holder, who was absent due to his own medical treatment. The court held that the power of attorney holder could represent the petitioners and that the cause shown was sufficient for restoration. The order of dismissal was set aside and the appeal was restored to its original stage. (Paras 6-8) B) Power of Attorney - Representation of Illiterate Parties - The court recognized that the petitioners, being illiterate and aged, had appointed a power of attorney holder to conduct the litigation. The power of attorney holder's absence due to medical treatment was considered a sufficient cause for non-appearance. The court held that the power of attorney holder could represent the petitioners in the appeal. (Paras 6-8)
Issue of Consideration
Whether the learned Adhoc Additional District Judge erred in dismissing the Miscellaneous Civil Appeal for default and refusing to restore it, and whether the power of attorney holder could represent the petitioners.
Final Decision
The writ petition is allowed. The order dated 2.12.2009 below Exh. 12 in Miscellaneous Civil Appeal No. 47 of 2007 passed by the learned Adhoc Additional District Judge, Parbhani is quashed and set aside. Miscellaneous Civil Appeal No. 47 of 2007 is restored to its original stage. Rule made absolute. No order as to costs.
Law Points
- Restoration of appeal dismissed for default
- Power of attorney holder can represent illiterate parties
- Liberal approach in restoration
- Sufficient cause for absence
- Article 227 jurisdiction
