Allowed

Nmdc Limited v. M/s.Geetanjali Ispat and Power Private Limited

Telangana HC5 Dec 2023CMA/557/2022

Case brief

AI extract

What is this about?

CMA allowed restoring suit dismissed for default after junior counsel swore affidavit explaining date error in hearing note. Appeal dismissed cost to respondent.

What did the court decide?

Suit restored to original stage; payment of costs of Rs.2,000 to respondent's counsel by appellant.

What the court decided

Nmdc Limited Vs M/s.Geetanjali Ispat and Power… — Execution and Attachment | Telangana HC (2023)

[³³⁸³ I

I i IzI i

; i I I I

I lI I a

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

¶6

TUESDAY ,THE F'FTH DAY OF DECEMBER TWO THOUSAND AND TWENTYTHREE

¶7

PRESENT

¶8

THE HSNOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

¶9

CIVIL MISCELLANEOUS APPEAL NO: 557 OF 2022

¶10

Appeal Under Section 43 Rule 1 CPC against the orders^{dated 0110912022} in lA No.489 of 20'19 in OS No.36 ol 2014 on the file of the^{XIV Addl. Chief} Judge, City Civil Court at Hyderabad.

¶11

Between:

¶12

NMDC Limited, A Government of lndia Enterprise,^{Havingits registeredoffrce} at Khanij Bhavan, 10-3-311/4, Castle^{Hills, MasabTank,Hyderabad - 500} 028 Rep.by its Authorized Signatory

¶13

...APPELLANT(S)

¶14

AND

¶15

M/s. Geetanjali lspat and Power Private Limited,^{GeetanjaliHouse,Ameri} Road, Nehrtl Nagar, Bilaspur, Chattisgarh^{- 496001 Rep. by its Director}

¶16

...RESPONDENTS

¶17

Counsel for the Appellant(s):SRl. K RAGHAVA^CHARYULU

¶18

Counsel for the Respondents: PURAMU PRAVEEN^KUMAR

¶19

The Court made the following: ORDER

¶20

THE HOIT'BLE SRI JUSTICE^{LAXMI NARAYANA ALISHETTY}

¶21

c.M.A. No.557 of2O22

¶22

JUDGMENT:

¶23

This CMA is hled assailing the order^{dated O1.O9.2O22 passed} in I.A.No.489 of 2Ol9 in OS No.36^{of 2Ol4 on the file of XIV Additional} Chief Judge, City Civil Court at Hyderabad.

¶24

Heard Sri K.Raghava Charuyulu,^{learned counselfor the} appellant. The learned counsel for the^{respondent reported no} objection for allowing this appeal.

¶25

3 The brief facts leading to hling of^{present appeal are as under}

¶26

The appellant hled I.A.No.489 ot 2Ol9ⁱⁿ O.S.No.36^{of 2O14 to} set-aside an order, dated 21.11.-20^{19, by u'hich the suit hled by the} appellant was dismissed lor clefault. The afhdavit^{filed in supportof} application in I.A.No.489 of 20 19^{\ ras snorn by the Juniorcounsel} representing the appellant. The rt:rsons [or non^appearanceon 2l.ll.2ol9, as set out in thc affidavit, are^{that the Junior Counsel} had wrongly noted the date of hearing as^{29.1 1.2019, instead of} 2l .ll.2Ol9. The learned .Iunior counscl,^{n'hile verifyingthe status of} case on online, it was noticed that the casc^{\'as dismissed for default} on 21.1L.2079. lmmediatel-v, he fitcd^I.A.No.489 of 2O19^on 25.71.2019 before the trial Court Lo set asidc thc dismissal order.

¶27

¶28

The triat Court^{hadobserved that the on perusalof the docket} proceedings and the^{affrdavithled by the Junior colleagueof the} advocate on^{record, it was reflectedthat appeilant was not diligent in} pursuing the matter.^{The trial Court furtherobserved that aJfidavit} filed by the Junior^{colleagueof the advocateon the record and} swearing to^{the facts, which are conce rn only to the client amounts} to professional^{misconductand thus, came to conclusionthat the} application^{was not maintainableon this ground alone' The trial} court also^{further observedthat suit was filed by the appellant and} therefore,^{burden lies on itto prove its claim at the earliest by} pursuing the^{matterand the appellantcannot be so carelessand} waste the precious^{timeof the Court and finally'came to conclusion} that if the^{applicationis allowed, it amounts to abuse of processof} law and also^{amounts toharassing the respondent and thus'} dismissed^{the I.A}

¶29

Learned counsel^{for the appellant would submitthat on} previous datc^{of hearing of the case i'e', 12'll '2079} '^{the counsel on} record^{,"r,as not availablc, therefore, the junior colleague represented} the matter on^{behalf o[ learnedcounsel for plaintiff.The junior} counsel wrongly^{noted the next datcoi hearing as 29 11'2O19instead} of 21.11 .2O19^{and as such, he could not r€present the matter on} 2l.ll.2ol9.On2l.l1-2}lg,astherewasnorepresentationon behalf of thc appcltant,^{the trial Court dismissed the suit for default'}

¶30

¶31

As such, the junior counsel has {iled aflidavit in support of application i.e., LA.No.489 of 2Ol9 in O.S.No.36 of 2Ol4 for restoration of the suit. There is no illegality or inhrmigz in swearing the affrdavit by the junior colleague filed in support of the application and there is no bar to file such application by the counsel on record.

¶32

karned counsel for the appellant relied upon the judgment of Hon'ble Apex Court in Ananta Pandu Porobo Desai and others vs. Smt.Lalita PtOIr, wherein at paragraph 'l', the Hon'ble Apex Court obsewed that the counsel appearing on behalf of the respondent has not been able to contest the position that the very same advocate who appeared in the suit on behalf of the plainriff could file an application for restoration of the suit on the authority of the original vakalatnama executed by the plaintiff in his favour and therefore, set-aside the order and restore the suit to hle.

¶33

Learned counsel for appellant also relied upon the judgment of this Court in G.Satyanarayana vs. M.Shankar.2 wherein at paragraph 9' the learned Single Judge of composite High Court of A.p. by referring to Rules 59, 54, 48 of Civil Rules of Pracrice, held that affidavit of interlocutory application need not bc signcd by a party himself or his counsel and furthcr held that nolr.'here it has been

¶34

'^{(rgze)z scc} oar(r)

¶35

'^{zoor(r)arr:os(s.9.)}

¶36

¶37

mentioned that^{the afhdavit fited in support of the petition shallbe} given by the party himself.^{Anybody, who is conversant with the} statement of^{facts, whichare necessary to be lurnishedfor} maintaining an interlocutory application,^{can, therefore, give the} alfidavit.

¶38

g. In the^{present case, the suit was dismissedfor defaulton} 2l.ll.2olg,^{since there was no representation on behalf of appellant'} The^junior counsel,^{who represented the matter on previ'ousdateof} hearing sworn^{the affidavit filed in supportof applicationunder order} IX Rule 9 of^{CPChad statedthat th€ date was wrongly notedas} 2g.||.2o:rginsteadof2l.l|'2o1g.Thefactofrepresentationofthe matter by^{junioradvocate and wrongnoting of next dateof hearing is} within the knowledge^{oijuniorcounseland therefore'he is the proper} person to swear the^affidavit'

¶39

lO. In the^{light of abovejudgmentsre[erredto by the appellant'} there is no bar^{in swearing the afUdavit by the counsel' Therefore' the} grounds on which^{the impugnedorder,clated Ol Og '2022 was passed} are unsustainable^{and accordingly, set aside'}

¶40

In the resulr,^{the C.M.A is allon'ccl and the suit is restoredto} the original stage,^{subjcctto pa)-mentol costsof Rs'2,OOO/- to the} fJ.ita counsel^{for respondentby the appellzrnt The appellant shall}

I I i

lead evidence as and when directed by the Trial Court, without seeking further time.

¶45

Consequently, miscellaneous petitions pending, if any, shall

stand closed.

SD/. K.SRINIVASA RAO

JOINT REG TRAR

/,TRUE COPY//

SECTION O FICER

To,

The XIV Addl. Chief Judge, City Civil Court at Hyderabad. 2. One CC to SRl. K RAGHAVA CHARYULU Advocate IOPUCI 3 One CC to SRl. PURAMU PRAVEEN KUMAR Advocate [OPUC]

¶54