Civil Revision No.433 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.433 of 2009 (O&M) Date of decision: 24.03.2009 Umed Singh .............Petitioner Vs. Azad Singh ............Respondent Present: Mr. Kamal Sharma, Advocate for the petitioner. CORAM: HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest?Yes -.- K.KANNAN, J. (ORAL) 1. A suit which was dismissed as withdrawn was sought to be restored by an application under Order 9 Rule 9 by the plaintiff. The Court dismissed the application and the revision is directed against the said order. 2. Admittedly, the counsel had made a statement before Court that the matter had been settled and that he was withdrawing the suit. The court recorded the statement of the counsel and dismissed the suit as withdrawn on 31.10.2007. The plaintiff alleged that he came to know about the dismissal of the suit as withdrawn on 19.11.2007 and moved an application for restoration saying that he had not directed his counsel to withdraw the case. The Court below found on a perusal of the file that the suit was withdrawn only on the basis of representation by the counsel and such a representation had been made after nearly 10 hearings when the plaintiff had been seeking for Civil Revision No.433 of 2009 (O&M) -2- adjournments and on the last of two occasions, the case had been specifically posted for reporting compromise. The Court below found that the power of attorney granted to the counsel contained a specific clause empowering his attorney to withdraw or compromise the suit. On such a line of reasoning, the Court found that there was no scope for restoring the suit. 3. A lawyer engaged by a party is his own agent and the party shall be bound by a statement made by his counsel. If such a statement is without authority, he shall have other remedies against his agent whose action had damnified him. The suit that results in dismissal as withdrawn constitutes an abandonment of the suit claim and as per the provisions of Order 23 Rule 1 (4) even a fresh suit would be barred. A fortiori even restoration of the same suit should be barred if there had been an abandonment of claim. Provisions for restoration available under Order 9 Rule 9 will also arise only in cases of restoration of suits, which are dismissed for default of appearance of the party and will not be applicable for restoration of a suit, which is dismissed as withdrawn. The Court cannot exercise even an inherent power of what even the express provisions do not admit of. It may be pointed out that even such a contention that he had not given any such authority to his counsel to withdraw the suit was not proved by the plaintiff by letting in any cogent evidence or seeking the permission of the Court to examine the counsel as a witness and if he was not able to cite his own counsel as witness, he ought to have at least sought the permission of the Court to cross-examine the counsel. The restoration application stands on the fragile and unsubstantiated Civil Revision No.433 of 2009 (O&M) -3- contention that he had not given any such consent to his lawyer to withdraw the suit. The dismissal of the application by the Court below under the circumstances is perfectly justified and there is no scope for interference in revision. 4. Civil revision petition is dismissed. No costs. (K. KANNAN) JUDGE March 24, 2009 Pankaj*