C.R.No.792 of 2011 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.792 of 2011 Date of decision: 14.11.2011 Kishore Sareen ...Petitioner Versus S.K.Gautam and others ... Respondents CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL Present: Mr. A.K.Chopra, Sr.Advocate with Mr. Vikram Anand, Advocate for the petitioner. Mr. Kanwaljit Singh, Sr. Advocate with Mr. Sidharth Gupta, Advocate for respondent No.1. Ajay Kumar Mittal,J. 1. The plaintiff-petitioner has impugned order dated 23.12.2010 passed by the trial Court on an application filed by Shri S.K.Gautam, Advocate for correction of his presence noted in the interim order passed by the trial Court on 8.10.2010 whereby he was marked present for the plaintiff. The trial Court observed that his presence had been wrongly noted as neither the plaint nor the Vakalatnama had been signed by him and on 11.11.2010, he had put in appearance on behalf of defendant Nos. 1 to 6 and filed his power of attorney. As a consequence, the plaintiff was asked to file the amended plaint as name of Shri S.K.Gautam, Advocate had been typed on the original plaint which was filed. 2. Learned counsel for the plaintiff-petitioner submitted that the trial Court had erred in allowing the application and directing 1 C.R.No.792 of 2011 the plaintiff-petitioner to file amended plaint on the following grounds:- (i) Presumption was attached to the order dated 8.10.2010 wherein the presence of Shri S.K.Gautam was noted for the plaintiff. (ii) Mr. S.K.Gautam had represented the plaintiff in earlier litigation and the name of Shri S.K.Gautam had appeared on the plaint and in such a situation when the notice of the plaint had gone to ` defendant Nos. 1 to 6, they could not have engaged Shri S.K.Gautam Advocate and assumption arose against Shri S.K.Gautam, Advocate that he had rightly appeared on 8.10.2010. 3. It was also submitted by learned counsel for the petitioner that proper opportunity had not been granted to the plaintiff-petitioner to controvert the averments made in the application. Moreover, it was a case where evidence should have been called before deciding the application. 4. Opposing the prayer of the plaintiff-petitioner, learned counsel for respondent No.1 submitted that inspite of availing three opportunities to file reply, the plaintiff had not filed any reply to dispute the averments made by respondent No.1. He further submitted that he had filed the application on 8.12.2010 on coming to know of the error and complaint was filed by the plaintiff-petitioner against him before the Bar council on the same date. He further supported the order of the trial Court. 5. After hearing learned counsel for the parties and 2 C.R.No.792 of 2011 perusing the record, I do not find any merit in the revision petition. 6. Learned counsel for the petitioner did not dispute that neither the plaint nor the Vakalatnama had the signatures of Shri S.K.Gautam, Advocate. Further Order 3 Rule 4(5) of the Code of Civil Procedure (in short, “the Code”) authorizes a lawyer to appear in a case where he has been engaged for the purpose of pleading only by filing a memorandum of appearance signed by himself. No such memorandum of appearance had been filed. There was no material to show that Shri S.K.Gautam had been engaged by the plaintiff to represent him. No presumption could be attached in such a situation and in absence of any signatures either on the plaint or Vakalatnama, the court had corrected the error which had crept in the said order. Moreover, in the facts of the present case, the representation of the plaintiff by Shri S.K.Gautam, Advocate in the earlier litigation was no bar for him to appear for the defendants in the present case. The trial court while allowing the application had noted as under:- “The perusal of plaint shows that the plaint has not been signed by Shri S.K.Gautam Advocate although his name has been typed as Shri S.K.Gautam and Shri Naresh Aggarwal Advocates for the plaintiff. Plaint contains the signatures of only Shri Naresh Aggarwal Advocate and the plaintiff Kishore Sareen but the plaint has not been signed by Shri S.K.Gautam Advocate. Secondly, Shri S.K.Gautam Advocate has not filed power of attorney on behalf of the plaintiff rather he has filed power of attorney on behalf of defendant Nos. 1 to 6 and further he has filed written statement on behalf of the defendants. Thus, it comes out that Shri S.K.Gautam, Advocate is counsel on behalf of the defendants and not on behalf of the plaintiffs. Jimni order be corrected and the name of Shri S.K.Gautam Advocate be mentioned as 3 C.R.No.792 of 2011 counsel for the defendants. The plaintiffs are directed to file the amended plaint on the next date of hearing.” 7. No error or perversity could be pointed out in the order dated 23.12.2010 passed by the trial court warranting interference by this Court. 8. Finding no merit in the revision petition, the same is dismissed. November 14, 2011 (Ajay Kumar Mittal) ‘gs’ Judge 4