1 cra417.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Civil Revision Application No. 417 of 2010 With Civil Revision Application No. 419 of 2010 Mr. Ravindra Lalchand Oswal & ors. ...Applicants v/s. Mr. Firoj Eliyas & ors. ..Respondents Mr. C.G. Gavnekar for the applicants. Mr. A.S. Khandeparkar i/b. Khandeparkar & Associates for the respondents. CORAM:- B.R. GAVAI, J DATED :- JANUARY 18, 2011. P.C. By way of present Revision Application, the Applicant challenges the order dated 4th May, 2010 vide which the Application filed by respondents 1-3 for restoration of special suit no. 11/89 under order IX Rule 4 of CPC came to be allowed. 2 cra417.10.sxw 2. The Respondent had filed a Special Suit no.11/89 against the defendants for specific performance of contract. There is another suit being Special Civil Suit no. 34/99 between the same parties and it was also pending before the same Court. Special Civil Suit No. 34/99 was dismissed on 2nd July, 2001. Vide order passed by this Court in First Appeal no. 84/2000, both the suits were directed to be heard together. Subsequently, the suit in question came to be transferred to the 4th Fast Track Court on 28th July, 2004. However, the same was not taken on Board on that day. Subsequently, it was on Board on 12th August, 2004. On the said date, since the Counsel for the plaintiffs was not present, the suit came to be dismissed in default. 3. Misc. Civil Application No. 126/2004 came to be filed by the plaintiff no.3 for himself as well as on behalf of plaintiffs 1 and 2. The same was vehemently resisted by the present Applicants. Vide impugned order the same Application is allowed. Hence, the present Revision Application. 4. Shri Gavnekar, the Learned Counsel appearing on behalf of the Applicant submits that the Application itself was not tenable. He submits 3 cra417.10.sxw that the power of attorney in favour of the plaintiff no.3 was not in accordance with law. He submits that the Advocate before whom the said power of attorney was notarized was examined on commission. It is submitted that she has specifically admitted that neither there was any register maintained by her as required under the Notaries Act nor were any serial nos. given. It is, therefore, submitted that in that view of the matter, the Application by the plaintiff no. 3 on the basis of power of attorney executed by plaintiff no. 1 and 2 was not tenable. The Learned Counsel relies on the Judgment of learned Senior Judge of this Court in the case of M/s. KBC Pictures v/s. A.R. Murgadoss & ors. reported in 2009 (2) ALL MR 108. 5. Shri Khandeparkar appearing on behalf of Respondent on the contrary submits that it is not disputed by plaintiffs 1 and 2 that they had executed the power of attorney in favour of plaintiff no. 3. He submits that on the contrary all the 3 plaintiffs are appearing before this Court and opposing the Application. He, therefore, submits that no interference is warranted in the present Application. 6. The Learned Judge while allowing the Application has found that the 4 cra417.10.sxw testimony of notary who was examined, was capable of drawing an inference that she was used to not insisting for identification of the executant or mentioning name of identifier in the document. The Learned trial Court, however, has specifically found that her testimony did not go to establish that power of attorney was not executed. It has been specifically found that the plaintiffs 1 and 2 who had executed the power of attorney has not challenged the same. The Learned Judge, however, found that Application on behalf of one of the plaintiffs was also tenable. 7. Insofar as the Judgment of the Learned Single Judge of this Court which is relied on by the Learned Counsel for the applicant is concerned, in the said case, the Learned Judge was considering an Application for grant of temporary injunction. In the said case the agreement between the parties which was relied on behalf of the plaintiff was notarised before the notary. However, it is to be noted that in the said case the defendant no.1 specifically denied the execution of such an agreement and even his signature thereon. In that view of the matter, the learned Judge found that the plaintiff had failed to make out a prima-facie case. In the present case the plaintiff no. 1 and 2 are not denying of execution of power of attorney in favour of the plaintiff no.3. On the contrary, all the three plaintiffs are 5 cra417.10.sxw opposing the present revision application. 8. It will also be appropriate to refer to certain provisions of CPC. The perusal of Rule 4 of Order IX reads thus: “4. Plaintiff may bring fresh suit or Court may restore suit to file- Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for (such failure as is referred to in rule 2), or for his non- appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit.” Rule 10 of Order IX reads thus:- “10. Procedure in case of non-attendance of one or more of several plaintiffs.- Where there are more plaintiffs than one, and one or more of them appear, and the other do not appear, the Court may, at the instance of the plaintiff or plaintiffs appearing, permit the suit to proceed in the same way as if all the plaintiffs had appeared, or make such order as it thinks fit.” 9. A conjoint reading of both the provisions would reveal that where the suit is dismissed under rule 2 or 3, the plaintiff can implead either a fresh suit or he may apply for an order to set aside his dismissal. Perusal of Rule 10 would reveal that if there are more plaintiffs than one and one or more of them appears, the Court at the instance of the plaintiff or the plaintiffs appearing can permit the suit to proceed in the same way as if all 6 cra417.10.sxw the plaintiffs had appeared. From the perusal of the aforesaid rules, it cannot be said that the jurisdiction which has been exercised by the learned trial court in restoring the suit has been exercised with material irregularity. It can be seen that the jurisdiction which has been exercised by the learned trial court advances the purpose of justice rather than preclosing the doors of justice, adopting a technical approach. 10. In that view of the matter, no case is made out for interference. Dismissed. 11. In view of order passed in Revision Application No. 417/2010, for the reasons recorded while dismissing the said Application, the Revision Application No. 419/2010 is also dismissed. (B.R. GAVAI, J)