IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 FAO.No. 297 of 2006() --------------------- AGAINST THE ORDER DATED 29/10/2005 IN IA.4904/04 IN OS.255/1991 of PRL.SUB COURT,TRIVANDRUM .................... APPELLANT/ (PETITIONER/PLAINTIFF) ------------------------------------------------------ U.P. STATE BRIDGE CORPORATION LTD., 16, MADAN MOHAN MALAVIYA MARG, LUCKNOW, UTTAR PRADESH, REPRESENTED BY ITS CHIEF LEGAL ADVISOR AND AUTHORISED AGENT. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): (COUNTER PETITIONER/DEFENDANTS) ----------------------------------------------- 1. STATE OF KERALA, REP. BY THE SECRETARY, PUBLIC WORKS AND TRANSPORT (D) DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE CHIEF ENGINEER, ROAD & BRIDGE, KERALA PWD PUBLIC OFFICE BUILDING, TRIVANDRUM. 3. THE SUPERINTENDING ENGINEER, ROADS & BRIDGE, PWD, SOUTH CIRCLE, TRIVANDRUM. 4. THE EXECUTIVE ENGINEER, BRIDGES DIVISION, KERALA P.W.D., TRIVANDRUM. GOVERNMENT PLEADER THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 18/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO 297 OF 2006 -------------------------------------------------------- Dated 18th August 2009 Judgment RAMAN, J. The plaintiff is the appellant. The suit OS No.255/91 was instituted by the plaintiff - U.P. State Bridge Corporation Limited, represented by the Chief Legal Advisor and authorised agent for realisation of the amounts allegedly due from the defendants. The case was included in the list for trial on 18.10.2003. One Mr.R.S.Goel, who was the Manager of the plaintiff company attached to the Head Office of the plaintiff company at Lucknow had come down to Thiruvananthapuram for the purpose of giving evidence in the suit, but the case was removed from the list on that day and it was posted to 03.02.2004. He had filed a proof affidavit in the place of chief examination and the same was marked in the case. On 3.2.2004 also, the case was not taken up for trial. Later, Mr.Goel was transferred to Bangalore. Thereafter, it is submitted, he fell sick and was admitted in the hospital. The case was again included for trial on 8.10.2004, but FAO 297/2006 2 the Advocate was not informed of the transfer of Mr.Goel to Bangalore and so, as usual, the Advocate sent intimation to him in his last known address, which was re-directed to the place where he was working at that time, i.e, to Bangalore. But, as already stated, since he was on leave, the same was returned to the Head Office of the company. A second letter issued on 30.09.2004 also did not reach Mr.Goel. On 8.10.2004, when the suit was included in the list for trial, the counsel prayed for an adjournment of the case, but the court was not inclined to grant any adjournment and on the very same day, the suit was dismissed for default. Subsequently, an application was moved under Order IX Rule 9 CPC for restoration of the suit supported by an affidavit. The affidavit was sworn to by an officer, authorised to conduct the case, namely the Deputy Project Manager. The court below thought that there is no specific authorisation in favour of the deponent and therefore, the affidavit is not maintainable. It also went into the question as to whether the suit itself is properly framed and represented by the Chief Legal Advisor as authorised. The court below held that FAO 297/2006 3 there is no power of attorney executed by the company in favour of the deponent to represent the company. The authorisation letter is not sufficient to represent the company. Though it is contended that a resolution was passed by the company in favour of the Chief Legal Advisor to file the suit and for conducting the case, no such resolution was produced before the court. The court below also observed that it is not clear whether the Managing Director of the company was authorised to execute a power of attorney as seen from Exts.A1 and A2 in favour of the deponent, who filed the affidavit in support of the petition for restoration. Ultimately for the above reasons, the application was dismissed and the present appeal is filed. 2. Heard Shri.G.S.Raghunath, learned counsel appearing for the appellant and also the learned Government Pleader appearing on behalf of the respondents. 3. The short question that arises for consideration is only as to whether there was sufficient reason for non appearance of the plaintiff or its representative on the appointed day on which the case was dismissed and whether the reason put forth in the FAO 297/2006 4 affidavit as sworn to by an officer of the company instills confidence in the mind of the court and whether it can be acted upon. There is no question of any affidavit being maintainable or not maintainable. So long as the affidavit is signed by the deponent and it is in proper form, the question of rejecting the affidavit as not maintainable does not arise. It is difficult to say whether the averments made therein are satisfactory or not. As regards the form in which it is filed and the competency of the person to file the affidavit, is beyond any dispute. It is not necessary to file an affidavit in support of a petition for restoration by the plaintiff himself in a variety of circumstances. In a company, where there are several officers, it is not the Principal Officer alone, who can sign the affidavit for the purpose of restoring the case into file. It is sufficient that the competent officer files an affidavit and it is always for the court to see whether the deponent had personal knowledge of the facts as stated in the affidavit . The question as to whether the very suit is framed properly, did not arise at this stage. Even after restoring the suit, if the maintainability or otherwise of the suit is FAO 297/2006 5 raised and arises for consideration, the issue can be raised and it may be considered in accordance with law. The suit was not dismissed on the ground of non-maintainability. But, it was dismissed for default of appearance. Admittedly, the case was posted on several occasions. At no point of time, the suit was dismissed for the reason as is stated in the present order. It is only because none appeared on behalf of the plaintiff and the rejection of the adjournment application moved, that the Advocate concerned that the suit happened to be dismissed. The fact remains that the witness who was to be examined for and on behalf of the plaintiff was available on many occasions and the reason stated in the affidavit for his non-appearance on the appointed day is that the officer was transferred to another place and therefore, proper notice could not be given to him. On the same day, the Advocate appearing for the plaintiff had sought for adjournment of the case. Therefore, it is not as though there was no representation on behalf of the plaintiff. In the above circumstances, the court ought not have dismissed the application for restoration. In this connection, we may only FAO 297/2006 6 refer to one decision of this court in Kalpaka Shrimp Exports v. Kerala Financial Corporation (1989(2) KLT 18) where the expression “Principal Officer” occurring in Order XXIX Rule 1 CPC has been held to be any officer, generally or specifically authorised by the Board in that behalf. The expression Principal Officer has not been defined in the CPC. 4. It must be remembered that in this case, Mr.R.S.Goel had filed an affidavit on behalf of the plaintiff, who was to be cross examined by the other side. He had come to the court for giving evidence on many occasions, but for some reason or the other, the case could not be taken up and lastly when the case was included in the special list, he happened to be transferred away and further, he also fell sick. If these averments are true, there is no reason why the application should not have been allowed. It is also to be noticed that the contention regarding his illness has been proved by producing two medical certificates. In the normal circumstances, the court could have accepted these certificates. But, the court proceeded on the basis that the very application is not maintainable. For the above reason, we find FAO 297/2006 7 that the application could not have been dismissed as not maintainable. Further, in the factual situation and in the light of the averments made in the affidavit filed in support of the application, we are satisfied that this is a case where the suit should have been restored to file. In the result, the appeal is allowed. IA No.4904/04 also stands allowed and the suit will stand restored to file. The parties will appear before the court below on 22.09.2009. This being a suit of the year 1991 and since pre-trial stage is already over, the court below may dispose of the suit as expeditiously as possible, at any rate, within four months from the date of receipt of a copy of this judgment. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 297/2006 8 FAO 297/2006 9