JAGAT NARAYAN, J. - (1.) THIS is a revision application by the plaintiffs against an appellate order of the Civil Judge, Sojat.
(2.) THE plaintiffs instituted a suit for the recovery of Rs. 978. 9. 6 against the defendant on 10. 9. 53. During the pendency of the suit a reference to arbitration was made through the intervention of the court. THE award was filed in court on 7. 9. 55. THE parties were not present on that date as the court had fixed 10. 9. 55 for the appearance of the parties in anticipation of the award being filed. According to the order-sheet, on 10. 9. 55 when the case was called the lawyers of the parties were present and they were informed that the award had been filed and that if any party had any objection it should be filed on 26. 9. 55 which was fixed as the next date of Peshi. On 26. 9. 55 Shri Maya Shankar appeared for the plaintiffs and Shri Chiranji Lal appeared for the defendant. Shri Chiranji Lal stared that on the previous date of hearing Shri Manak Lal lawyer of the defendant was not present and requested the court to extend the time for filing the objections against the award. The court however held on the basis of the order-sheet dated 10. 9. 55 that Shri Manak Lal was present on that date on behalf of the defendant and that he had due notice of the filing of the award. But it found that one month's time should have been allowed to the parties to file objections. Time for filing objections was accordingly extended by another 15 days and 27. 10. 55 was fixed as the next date of Peshi. No objection was however filed by any party by 10. 10. 55 upto which time for filing objections had been extended. On 27. 10. 55 the presiding officer was on leave and the case was ordered to be put up on 31. 10. 55. On that date an objection was filed by the defendant. It is paper No. A 51/1. After narrating the objections against the award the following note was appended : - "notice of the filing of this award was given on 26. 9. 55. The objection is being filed today after excluding the time taken in obtaining the copies. " This objection was signed by the defendant personally as well as by his lawyer Shri Manak Lal. It was contended on behalf of the plaintiffs that the objection was barred by limitation under Art. 158. This contention was upheld by the presiding officer on the ground that notice of the filing of the award was given to the parties on 10. 9. 55 and the period for filing objections expired on 10. 10. 55. The only argument advanced on behalf of the defendant before the trial court was that he was entitled to exclusion of time requisite for obtaining a copy of the award under sec. 12 of the Limitation Act. It appears that a copy of the award had been taken by the defendant before 26. 9. 55. According to the defendant the notice of the award was given to him on 26. 9. 55. The court observed that even if that date be accepted as the date of giving a notice the period for filing objections expired on 26. 10. 55 and the defendant was not entitled to exclude any time for obtaining the copy of the award as it had already been obtained by him before 26. 9. 55. It is significant that it was not alleged before the trial court that Shri Manak Lal was not appearing as a lawyer on behalf of the defendant. Against the order of the presiding officer the defendant preferred an appeal. The sole ground taken in this appeal was that Shri Manak Lal was not authorised to appear on behalf of the defendant and so notice to Shri Manak Lal on 10. 9. 55 could not be taken to be notice given to the defendant. The learned Civil Judge who decided the appeal accepted this contention on the ground that the Vakalatnama in favour of Shri Manak Lal was not on record and that under O. 3 R. 4 C. P. C. Shri Manak Lal could not act for the defendant unless he had been appointed by a document in writing signed by the defendant.
(3.) ON behalf of the plaintiffs it is urged that the decision of the learned Civil Judge is erroneous. It is contended that the objection filed by the defendant on 31. 10. 55 and signed by him personally is signed by Shri Manak Lal also which shows that he was appearing for him in this suit. The order-sheet dated 26. 9. 55 also shows that he was appearing for the defendant at that stage of the case. It may be mentioned here that several lawyers were engaged by the defendant in this case to represent him. Shri Chiranji Lal appeared for the defendant on 26. 9. 55. The defendant himself admitted that he was given notice of the filing of the award by the court on 26. 9. 55. This admission is conclusive for purposes of the present case. Further it is contended that Shri Chiranji Lal stated on 26. 9. 55 that on 10. 9. 55 Shri Manak Lal was not present. If some other lawyer had been appearing for the defendant in those days in these proceedings Shri Chiranji Lal would have named that lawyer and not Shri Manak Hal as the lawyer who was not present on 10. 9. 55 according to his allegation. Lastly it is argued that these facts go to show that Shri Manak Lal was appearing for the defendant and he could not have done so without filing his Vakalatnama. It is pointed out that before the trial court it was not alleged by the defendant that Shri Manak Lal was not appearing for him and that it was in the memorandum of appeal for the first time that it was alleged by the defendant that Shri Manak Lal was not appearing for him. It is suggested that Shri Mank Lal's Vakalatnama might have been removed deliberately from the file before it was sent to the appellate court. A perusal of the file shows that the whole of the index was written at that time. This must have been done before sending the record to the appellate court. The pages of the file also appear to have been numbered on the day. This also must have been done before it was sent to the appellate court. From the mere fact that the Vakalatnama is not entered on the index it cannot be inferred that it was not filed. The fact that Shri Manak Lal signed the objection against the award and presented it leaves no doubt in my mind that he was appearing for the defendant in this case. This objection is signed by the defendant also. Further the order-sheet dated 26. 9. 55 goes to show that even on 10. 9. 55 it was Shri Manak Lal who was appearing for the defendant. The court would not have permitted Shri Manaklal to appear for the defendant without filing his Vakalatnama. I accordingly infer that Shri Manaklal must have filed his Vakalatnama in this case. It might have been misplaced or it might have been removed deliberately. The learned Civil Judge was accordingly not justified in holding that because Shri Manaklal's Vakalatnama was not recorded notice of filing the award given to Shri Manaklal by the court was not notice to the defendant. So far as the Older of the trial court is concerned it was attacked on behalf of the defendant on the ground that there was no material on record to show that the defendant had obtained a copy of the award before 26. 9. 55. The trial court must have referred to the register of copies or it may be that a copy of the award taken by the defendant was shown to it. It is for the defendant who wants time requisite for obtaining copies to be excluded to show whether he actually obtained any copy and if so how much time was necessary for obtaining it. No copy of the award has been filed to show that one was actually taken. ;