- (1.) THIS is a revision by the defendant Laxmichand against an order of the Senior Civil Judge, Sirohi, dated the 2nd January, 1954, and has arisen under the following circumstances.
(2.) THE plaintiff opposite party, Harakchand, filed this suit against the petitioner on the allegation that the latter owned to his (plaintiff's) maternal grand-father Devaji a sum of Rs 2378/- and Devaji had made a gift of his property to the plaintiff along with his two brothers. THE defendant resisted the suit on the ground that he had never received any money from Devaji and further that the plaintiff Harakchand was not alone entitled to bring the present suit as Devaji had made a gift of his property to Harakchand and his two other brothers Phoolchand and Jawanmal jointly and, therefore, these persons were also necessary parties to the suit and as they had not been impleaded therein, the suit was bad for non-joinder of necessary parties and deserved to be dismissed. THE trial court dismissed the suit on the ground of nonjoinder of necessary parties on the 31st March, 1951. On appeal the District Judge maintained the decree of the trial court. THEreafter the plaintiff came in appeal to the Court and a Division Bench, by its judgment dated the 2nd September, 1953, allowed the appeal and remanded the case for retrial with the direction that - "the trial court will give notice to the parties on receipt of this record from this Court, and the plaintiff will be allowed to file an amended plaint within one month of the receipt of the notice by him, provided the plaintiff pays the defendant Rs 200/- as costs for the amendment within that period of one month. . . . . . . . . . . If costs are not paid and the amended plaint is not filed within the time allowed, the suit would stand dismissed. " It is important to mention in this connection that on the 14th April, 1950, Harakchand plaintiff had applied in the trial court for permission to amend his plaint whereby he wanted to implead his two bothers Phoolchand and Jawanmal as plaintiffs in the suit but this application was rejected. After remand the record was placed before the trial court on the 21st September, 1953. On that day the Senior Civil Judge passe an order by which it registered the suit and directed that counsel for the parties be informed of the next date of hearing which was fixed as the 4th November, 1953. THE court further said that the plaintiff shall, in accordance with the judgment of the High Court dated the 2nd September, 1953; give the sum of Rs. 200/- as costs to the defendant and put in the amended plaint within one month of the date of the notice. It may be pointed out that neither the parties nor their counsel were present on that date. It appears, however, that Mr. M. R. Modi, counsel for the defendant and Mr. K. J. Singhi, counsel for the plaintiff, accepted the notice on the 12th and 13th October, 1953, respectively, and in lieu thereof, put their signatures on the order-sheet. On the 4th November, 1953, both counsel were present. A prayer was made on behalf of counsel for the plaintiff for time to deposit the sum of Rs. 200/- and to put in the amended plaint. THE court gave a direction that counsel for the plaintiff should comply with the order of the High Court dated the 2nd September, 1953, and the case was fixed for the 19th November, 1953. In the meantime, on the 9th November, 1953, Mr. Singhi counsel for the plaintiff deposited the sum of Rs. 203/- by an application in which he also prayed that an order be given for allowing the necessary amendments in the plaint. This application was also signed and presented by the plaintiff and the court made an order that the sum of Rs. 200/- be deposited and a receipt issued. THE amended plaint was, however, put in on the 19th November, 1953. An objection was at once raised on behalf of the defendant that the amended plaint had been presented beyond the time fixed by the High Court in its order dated the 2nd September, 1953, and that he wished to file a written objection and prayed for time to do so which was granted, and the case was then posted for the 2nd December, 1953. This objection was put in accordingly and rejected by the Senior Civil Judge by his order dated the 2nd January, 1954, against which the present revision has been brought. THE contention raised on behalf of the defendant was that the plaintiff's counsel had accepted notice in this case on the 13th October, 1953, and that this notice to the plaintiff's counsel was sufficient notice to the plaintiff himself according to O. III. r. 5 C. P. C. and that the amended plaint was filed on the 19th November, 1953, which was beyond one month's time permitted by the High Court; and, therefore, the plaintiff's suit stood dismissed on that date by virtue of the High Court's order dated the 2nd September, 1953. THE conclusion of the learned trial Judge is that one month's time should be counted not from the 13th October, 1953, but from the 4th November, 1953, when Shri Singhi undertook to file the amended plaint and deposit Rs. 200/- and wanted time for it", as the plaintiff must be deemed to have received notice of what he was required to do on that date and not earlier. THE trial Judge also said that by the order which he passed on the 21st September, 1953, counsel for the parties were to be informed merely about the next date of hearing and that so far as further step to be taken were concerned, a notice was to be issued to the plaintiff, which notice was, however, not issued and the necessity of issuing a further notice disappeared only on the 4th November, 1953, when Mr. Singhi on behalf of the plaintiff undertook to file the amended plaint and deposit the requisite sum of Rs. 200/ -. It is contended in this revision that the learned Judge below had completely mis-directed himself in passing the order which he did and that on the 19th November, 1953, the day on which he held that the amended plaint was within time, he was completely Functus Officio and there was no proceeding left alive before him owing to the failure on the part of the plaintiff to comply with the direction given by the High Court in its order dated the 2nd September, 1953, according to which, on the plaintiff's failure to pay the sum of Rs. 200/- and to present the amended plaint, the suit was to stand dismissed automatically and without any further order. A number of preliminary objections were raised on behalf of the plaintiff opposite party as to the competency of the present revision application. The first objection was that the order of the trial court, holding that the amended plaint had been presented within time and therefore the case should proceed, even if wrong was capable of being challenged within the meaning of sec. 105 of the Code of Civil Procedure in any appeal which may eventually be filed by the defendant in this Court, and, therefore, this revision was incompetent by virtue, of the decision of this Court in the Full Bench case of Purohit Swaroopnarain (l ). In the second place, the objection was raised that the conclusion at which the trial court arrived and which is embodied in its order under revision was based on the interpretation of its own orders dated the 21st September, 1953, and the 4th November, 1953, and was one which it was entirely within its jurisdiction to arrive at and that even if a conclusion like this might be held to be wrong by this Court, it should not interfere with it in the exercise of its revisional jurisdiction. Lastly jit was urged that the amended plaint having been presented in the trial court, Phoolchand and Jawanmal, the other two brothers of Harakchand, had become parties to the suit and, therefore, they should have been impleaded as opposite parties by the defendant in the present revisional application, and as the had not been impleaded, this revision was bad for want of necessary parties and deserved to be dismissed. The most important question which falls for determination is whether the present revision is maintainable in view of the law laid down as regards revisions in Purohit Swaroopnarain's case (1) or in Pyarchand's case (2) which proceeded it. Briefly put, the principle laid down in the above decisions is that a revision against an order of a subordinate court amounting to a case decided and assuming that there is an error involving the question of jurisdiction would not be capable of being challenged by a revision to this Court if such an order can be challenged even indirectly within the meaning of sec. 105 of the Code of Civil Procedure in any eventual appeal which may be filed in this Court. The contention of learned counsel for the plaintiff is that the order passed by the trial court and which is sought to be challenged by means of this revision is capable of being so challenged in any appeal which may have to be filed by the defendant in the case of his failure in the suit and, therefore, he has no right to agitate this question by means of a revisional application. The question to decide, therefore, is whether the order of the Senior Civil Judge could or could not be made a ground of attack within the meaning of sec 105 C P. C. The relevant portion of sec. 105 is in these terms - "save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of* its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. " There is a consensus of judicial opinion that the phrase "affecting the decision of the case" means affecting the decision of the case on the merits. The further question, which, therefore arises is whether the order under revision in the present case is an order which affects the decision of the case on the merits. The contention before me on behalf of the petitioner is that the order in question is not one which can be said to affect the decision of the case while the contention on behalf of the plaintiff opposite party equally emphatically is that it does and would affect the decision of the case on the Maries. Unfortunately no direct authority bearing on this question has been placed before me, nor do I know of any. On the side of the petitioner it has, however, been urged that the nearest analogy to the present case is afforded by an order setting aside the dismissal of an appeal for default. In Radha Mohan vs. Abbas Ali (3) it was held by a Full Bench of the Allahabad High Court after an elaborate review of the case law bearing on the subject that the propriety of the order setting aside an ex parte decree cannot be set forth as a ground of objection in the memorandum of appeal from the decree ultimately passed in the suit under sec. 105 C. P. C. The learned Judges observed that they were unable to concede how the error, defect or irregularity in the order setting aside the ex parte decree could affect or influence the merits of the case, that the trial of the case could not commence until the ex parte decree had been discharged and that the setting aside of the ex parte decree was, therefore, a condition precedent to an enquiry or trial in to the merits of the claim and, therefore the setting aside of ex parte decree itself could not be said to be something which affects the merits of the case. Similarly in Baldeo Lall vs. Mt Matisara Kuer (4) it was held that sec. 105 can have no application to a case where the ex parte decree is set aside and the point is raised that the decree should not have been set aside at all, because an order so passed merely ensures a hearing upon the merits and cannot be considered to be and order affecting the decision of the case. In Venkata Narasi-mham vs. Nagajirao (5) the principle is laid down that where the effect of the order is to lead to an enquiry in to the case, it cannot be said that such an order affects the case on the merits but where the order prevents such an enquiry and shuts out, as it were, a trial then it does affect the case on the merits and such an order comes within the scope of sec. 105 C. P. C. Applying this principle, it was laid down that an order setting aside the order of dismissal for default only reopens an enquiry and does not affect the decision of the case and, therefore, cannot be questioned in any appeal against the final order. Again in Dhondu Narayan vs. Vaman Govind (6) it was held that an order setting aside an ex parte decree cannot be challenged in an appeal from decree passed ultimately in the suit, as an erroneous order accepting an application to see aside an ex parte decree does not affect the decision on its merits. The same view was taken in Sunder Singh vs. Nighaiya (7 ). In Baijnath vs. Ram Narain (8) (a case of the Oudh Chief Court) it was held, over-ruling an earlier,case Mohiuddin Ahmed vs. Hanuman Prasad, 9), that the propriety of an order under O. 9, r. 9, restoring a case cannot be raised in an appeal from the decree passed in the suit and, therefore, an application in revision against such an order lay. Applying the principle deductible from the cases reviewed above, it seems to me that the order passed by the Senior Civil Judge to the effect that the amended plaint was presented in the trial court within the time specified by the High court in its order and therefore the trial should proceed is a decision which cannot be said to have any bearing on the merits of the case. In fact at the date this order was passed, the suit and already been dismissed and had been allowed by the High Court to be revived provided certain conditions were fulfilled, and it was only on the fulfilment of those conditions that the suit could be revived and not otherwise, and it would be open such revival only that a trial as to merits of the case would begin but before such inquiry it is too much to say that the decision which the trial Judge gave on the matter which arose before him was a decision affection the merits of the case. Learned counsel for the plaintiff respondent vehemently urged that the above conclusion was negatived by the decision of our own Court in Pyarchand's case already referred to above and in Patram Dass' case (10) and in certain cases to which I shall presently refer. In Pyarchand's case one of the points raised was whether the suit was barred by limitation and the trial court held that the suit was within time ; whereupon the defendant filed a revision in the High Court against the trial courts' order. It was held that the revision was not entertainable as the question of limitation could be agitated in appeal to the High Court from the final decree passed by the District Judge, and therefore, it could not be said that that was a case in which no appeal lay to the High Court. That case provides no parallel to the present case. The question whether the suit was within limitation or not is undoubtedly a question which has a bearing on the merits of the case and there could not be no answer to the contention that such a point could be raised in appeal to the High Court at the proper juncture in any appeal which may have to be filed by the defendant. In Patram's case (10) the question was whether a revision was maintainable against an order allowing or refusing amendment of a plaint and this depended upon whether such a plea could be taken under sec 105 C. P. C. It was held that the words "affecting the decision of the case" in sec. 105 embraced the case both as it was put forward originally and as it was sought to be amended and, therefore, an order allowing or refusing as amendment was tantamount to one affecting the decision of the case on the merits and that an order of such a nature shall be open to challenge by a ground under sec. 105 Patram's case (10), also does not appear to me to have any bearing on the question before me because the controversy here is not whether the amendment should have been allowed or disallowed. The amendment stood already permitted by the High Court although certain conditions were required to be fulfilled before the case could be revived. The precise question before the trial court was, therefore, not whether the amendment was to be allowed or disallowed but whether the conditions laid down by the High Court for the introduction of the amendment, as it were, into the case had been fulfilled or not This latter question to my mind as of an entirely different character and has no bearing on the merits of the case as such, as an enquiry into the merits of the case was to commence only after the amended plaint had been properly introduced in to the case. Learned counsel then invited by attention to Roop Kishore Vs. Jug Raj (II), to which I was a party, and argued that a cognate question that arose there as to whether the plaintiffs had put in the amended plaint within one month from a certain point of time specified by the appellate court was allowed to be argued in appeal, and he, therefore, contended that this case was an authority for view that a point like this would be open to challenge in an appeal that may have to be filed from the final decree if and when passed against the aggrieved party. In that case the plaintiffs brought a suit on the footing of an acknowledgment. The trial court dismissed it. The plaintiffs thereupon went in appeal to the District Judge who remanded the case with a direction that the plaintiffs be allowed to amend their plaint within one month of the record reaching the trial court. The record reached the trial court on a certain date. The trial court did not give any notice to the parties of the record having reached that court. The plaintiffs filed the amended plaint at a time which was beyond one month of the record having reached the trial court. The trial court dismissed the suit as the amended plaint had not been put in within the time allowed. The plaintiffs thereupon filed an appeal to this court and the question raised was whether the trial court was right in dismissing the suit and in holding that the plaintiffs were not entitled to put in the amended plaint after the time allowed to them by the appellate court had expired. This question was of course allowed to be argued and it was held that the trial court was right in the decision to which it came. This case however, is one where the plaintiff's suit was dismissed on the finding that he had failed to put in his amended plaint within the time allowed to him by the appellate court. Necessarily, therefore a trial on the merits was shut out and when such a contingency arises, there is authority for holding that a point like this could and should be allowed to be raised under sec. 105 C. P. C. Besides, the order passed by the trial court in this case amounted to a decree and it cannot be questioned that an appeal lay against such a decree. This case, therefore, cannot furnish any authority for the proposition that in a converse case where the trial court, instead of dismissing the suit, permits it to go on even though the amended plaint may have been filed out of time and contrary to the directions of the higher court, such a decision is one affecting the merits of the case within the meaning of sec. 105 C. P. C. Another case relied on by learned counsel in this connection is Md. Najibuzzaman vs. Sheo Shanker (12 ). Under the U. P. Encumbered Estates Act (No. 34 of 1934), a claim was filed after three months from the date of the publication of the notice under sec. 9 of the Act. The special Judge, however entertained the claim and allowed it. In an appeal which was taken from the above order, it was contended that the special judge was wrong in entertaining the claim which was preferred beyond the period of three months from the issue of notification. On the side of the respondents it was argued that the special judge had earlier entertained the claim and that that order was not appealed against and therefore, it could not be questioned in the appeal from the final decree. This contention was repelled and it was held that the order in question could be attacked under sec. 105 C P. C. in appeal from the final decree. This case again is, in my opinion distinguishable, as the point raised was one of limitation prescribed under an Act and such a point is one which affects the merits of the case as a plea of limitation in an ordinary suit does. Another case relied upon in this connection is Kanchhed Mal vs. Ganga Prasad (13) where it was held that an order of a court setting aside an award of an arbitrator and deciding the case itself is an order which affects the decision of the case under sec. 105 and, therefore, whether the award was correctly set aside or not was a question which could be challenged in appeal against the decree. This case is also distinguishable as the award is clearly a decision on the merits and anything which sets it aside would therefore, equally affect the merits of the case. Ramlal vs. Kali Prasad (14) is also of no help to the respondent as the defect in procedure there as to the service of notice on the respondent had led to the entire dismissal of the appeal and it clearly appears to me that thereby any hearing of the appeal on the merits was shut out and, therefore, such a decision affected the merits of the case. On a consideration of the case law referred to above, I am, therefore, persuaded to come to the conclusion that an order like the one passed by the trial Judge in the present case holding that the plaintiff opposite party had complied with the conditions precedent to the revival of his case, as laid down in the order of remand of this Court, cannot be said to be an order affecting the decision of this case on the merits, and that in fact it is a sort of an independent stage in the case occasioned by certain circumstances, and a trial on the merits was to begin only after this stage was success-full gone through. In other words the order of the trial Judge only opened the stage for a trial on the merits and was not some thing which was connected with the merits by itself. In this view of the matter, it necessarily follows that this order is not capable of being challenged in any appeal from the eventual decree which may be passed against the present petitioner within the meaning of sec. 105 and, therefore, I overrule the first part of the preliminary objection and hold that this revision is not barred on this score. Turning to the second objection, the question is whether the present revision raises any question of jurisdiction or it is merely directed against an order of the Senior Civil Judge which at the worst can be said to be erroneous. The contention on behalf of the petitioner is that the opposite party had put in his amended plaint on 19th November, 1953, and that this was beyond one month of the notice of the record having reached the trial court having been received by counsel for the plaintiff, that is, from the 13th October, 1953, and, therefore the plaintiff's suit stood dismissed on that date by the very language of the order of this Court remanding the case and the trial Judge was completely functus officio on that date and had no jurisdiction to act in the manner in which he did. This undoubtedly raises a question of jurisdiction. In Roop Kishore's case (11) which I have already cited above, the appellate court had remanded the case to the trial court with a direction that the plaintiffs be allowed to amend their plaint within one month of the record reaching the trial court. The record reached that court on the 27th October, 1951. The defendant brought it to the notice of the court that the plaintiffs had not put in their amended plaint and, therefore, prayed that the case be consigned to the record-room. The plaintiffs contended that they were entitled to file the amended plaint within one month from the 10th January, 1952, when they received information about the reaching of the record. The plaintiffs filed their amended plaint on the 5th February, 1952. The court refused to accept it and dismissed the suit. It was held that the trial Judge had acted rightly and that he had no authority to extend the time fixed by the appellate decree of the district court. This clearly shows that what the respondent is attacking here is the very authority of jurisdiction of the trial court to have admitted the amended plaint and allowed the proceeding to commence onwards and, therefore, it cannot be said that what is challenged here is merely an erroneous order not involving the question as to jurisdiction (see Raghubar Dayal vs. Saukatha Bakhsh (15) also in this connection ). Learned counsel raised certain other matters while arguing this aspect of the case but those relate to the merits and I propose to deal with them at the proper place. There is, therefore, no force in this objection either and I over-rule it. The last objection raised is that this revision is incompetent because the other two brothers of Harakchand, who were sought to be impleaded as co-plaintiffs by the amended plaint, have not been impleaded as parties to this revisional application. This objection is also without any real substance when the contention of the petitioner is that the learned Senior Civil Judge had no jurisdiction whatsoever on the 9th November, 1953, to proceed in the manner in which he did. It is difficult to hold that these two other persons had been properly brought on the record so as to make it obligatory for the petitioner to implead them in this revisional application. As soon as the amended plaint was sought to be put in, the petitioner raised an objection that the opposite party had defaulted in complying with the conditions laid down by the High Court in its order of remand and that the learned Judge was Functus Officio. It is true that this objection was repelled on the 2nd January, 1954, by the order under revision, but it is not at all clear from the record whether the amended plaint had been scrutinized by the trial Judge and accepted by him as being in conformity with the order of remand or that in any manner it travelled beyond the scope of the amendment allowed. It seems that the trial Judge had not by that time directed his attention to this aspect of the case and, therefore, it is impossible to say that the brothers of Harakchand have been properly brought on the record of the trial court and occupied the possession of plaintiffs in the case. In these circumstances I am of opinion that it would be going too far to dismiss this revision on this ground alone. Having disposed of the preliminary objections, I now proceed to address myself to the question whether the order passed by the Senior Civil Judge was one which he had jurisdiction to pass in the circumstances of the case. As already stated above, the High Court had directed by its order of remand that the trial court will give notice to the parties of the receipt of the record from this Court and the plaintiff will be allowed to file an amended plaint in one month of the receipt of the notice by him provided that the plaintiff pays the defendant Rs. 200/- as costs for the amendment within the period of one moth. It was further added in the same order that if costs are not paid and the amended plaint is not filed within the time allowed, the suit would stand dismissed. It is common ground between the parties that the record was placed before the trial court on the 21st September, 1953. Neither parties, nor their counsel, were present on that date. Therefore, the court ordered that the next date fixed was the 4th November, 1953, and that counsel for the parties be informed. It was further ordered that the plaintiff should, in accordance with the order of the High Court dated the 22nd September, 1953, pay the sum of Rs. 200/- to the defendant and produce the amended plaint within one month of the receipt of the notice by him. Mr. Modi, counsel for the defendant and Mr. Singhi, counsel for the plaintiff signed this order-sheet on the 12th and 13th October, 1953, respectively. On the next date which was the 4th November, 1953, Mr. Singhi wanted time to comply with the order of the High Court. Thereupon the trial Judge gave a direction the counsel for the plaintiff should comply with the directions given in the order of the High Court and that the case be fixed for the 19th November, 1953. It was on the 19th November, 1953, that the amended plaint was put in. It is contended on behalf of the petitioner that the only notice which was contemplated by the High Court to be given by the trial court was as to the receipt of the record by it and no further notice was required to be given. There is force in this contention. It appears to me, therefore, that the learned trial Judge acted improperly when he passed his order dated the 21st September, 1953, in the terms in which he did. That order has led to unnecessary complications, and it is strenuously contended on behalf of the plaintiff opposite party that the trial Judge had mere sought to inform counsel for the parties that he next date fixed in the case was the 4th November, 1953, and that a further notice was ordered to be given to the plaintiff to comply with the directions given in the order of this Court dated the 2nd September, 1953. I must point out, however, that no such notice was contemplated or required to be given by this Court, and the only notice which this Court wanted to be given to the parties was as to the date when the record had reached the trial court. There is no gainsaying the fact that on the 13th October, 1953. when Mr. Singhi counsel for the plaintiff signed the order-sheet, he got notice that the record had been received from the High Court, and it is impossible to contend that any further notice was required to be given or should have been given by the trial Judge in connection with the compliance of the High Court's order of remand permitting the amendment. To my mind, the conclusion, therefore, is irresistible that the opposite party cannot be heard to say now that he had no notice of the record having reached the trial court on the 13th October, 1953, or that a further notice to him in connection with the compliance with the High Court's order was necessary, nor can it! be accepted that the learned trial Judge had any authority or jurisdiction to say that the period of one month within which the money was to be deposited and the amended plaint was to be filed would run from any other date than the date of notice of the receipt of the record by the party concerned. This notice the plaintiff's counsel undoubtedly received on the 13th October, 1953. The approach of the learned trial Judge in this connection is entirely incorrect when says that the question is whether in view of the direction contained in his order dated the 21st September, 1953, the notice) to Shri Singhi for the next date of hearing be presumed to be a notice duly communicated to the plaintiff for other details contained in the order-sheet dated the 21st November, 1953. What the plaintiff was required to comply with was the direction given in the order of the High Court and not what the learned Judge stated in his order dated the 21st September, 1953. I may also add in this connection that so far as I am able to consider, it would not be open to this Court also to vary the conditions laid down by it in its order of remand, in view of its express phraseology, namely, that if such and such thing was not done within one month of the notice of the receipt of record in the trial court, the suit would stand dismissed, much less could the trial Judge vary the terms of this order directly or indirectly. It was, however, contended in this connection that notice to Mr. Singhi, counsel for the plaintiff, was no notice at all as his authority to represent the plaintiff had come to an end with the dismissal of the suit. This contention is entirely without any substance, for one thing, Mr. Singhi had accepted the notice without any objection on the 13th October, 1953 and he never pointed out to the court that he had no authority on that date to represent the plaintiff. Again, on the 4th November, 1953 Mr. Singhi put in his appearance on behalf of the plaintiff and then he wanted time to put in the money and produce the amended plaint All that the trial court told him, and rightly, was that he should comply with the order of the High Court dated the 2nd September, 1953. It is remarkable that Mr. Singhi did not file any fresh Vakalatnama on the 4th November and therefore it is difficult to accept that it was on that day that he again acquired authority to represent the plaintiff, having had none on the 13th October, 1953. In this connection I may also draw attention to the provisions of O. III r. 4 (2) according to which the appointment of a pleader must be deeded to be in force, until determined with the leave of the court by a writing signed by the client or the pleader, and filed in court, or until the client or the pleader dies, or until ail proceedings in the suit are ended so far as regards the client. Reading the above rule along with sub-rule (3), it is clear that a fresh Vakalatnama is not necessary for the purpose of appearing in execution proceedings or in appeal or in review or for setting aside the ex parte decree or for an application to restore a suit dismissed for default. It seems to me also that no new Vakalatnama by a lawyer already briefed in the suit was or would be necessary for the purpose of appearing in the case after remand by the appellate court. Besides, the objection that Mr. Singhi had no authority to represent the plaintiff opposite party on the 13th October was never raised either on behalf of the opposite party or by his counsel Mr. Singhi in the trial court although a written reply was filed on his behalf to the petitioner's objection in the trial court that the suit stood already dismissed on the 19th November. 1953. The present objection has been raised here for the first time and is obviously an after thought. I am, therefore, not at all prepared to accept the argument that Mr. Singhi ceased or had no authority to represent the plaintiff opposite party on the 13th October, 1953. I must next draw attention to rule 5 of the same Order according to which any process served on the pleader of any party must be presumed to be duly communicated and made known to the party whom the pleader represents, and it is further provided that it shall be as effectual for all purposes as if the same had been given to or served on the party in person, unless the court otherwise directs. Notice to Mr. Singhi, therefore, was notice to the plaintiff unless of course the court otherwise directed. The learned Senior Civil Judge seems to think that his order dated the 21st September, 1953,conlained a specific direction that the plaintiff shall comply with the High Court's order from the date of the receipt of the notice by him, and that this direction was in the nature of "unless the court otherwise directs. " I should like to make it clear that the order of the learned Judge could not travel beyond the directions of the High Court given in the order of remand in any case The High Court had ordered that the plaintiff must do both things within one month of the notice of the receipt of the record by the plaintiff. The learned trial Judge, to my mind, therefore, was clearly acting in excess of his jurisdiction when he gave a direction, as he says he did, that the plaintiff was required to put in the amended plaint or the money within one month of the notice calling on him to do so, and he had no authority to pass such an order. It also does not appear to me that on the 4th November, 1953 any undertaking as such was given by Mr. Singhi to comply with the directions given by the High Court. All that the order-sheet of that date says is that the plaintiff wanted time to put in the amended plaint and the money, whereupon the court directed him to comply with the directions given by the High Court's order. In the result I find that there is no escape-from the conclusion that the order of the court below that the plaintiff got the requisite notice in this case not on the 13th of October, 1953, but on the 4th November, 1953, was entirely erroneous and contrary to the specific directions given in the order of this Court. It follows as a necessary corollary that on the 19th November, 1953, when the plaintiff opposite party put in the amended plaint, his suit already stood dismissed by virtue of the express language of the order of the High Court and it was beyond the power of the learned Senior Civil Judge to revive it any further. Learned counsel for the plaintiff argued in the last resort that in his application dated the 9th November, 1953, when the plaintiff had put in the sum of Rs 200/-, a request was also made that orders be passed for the amendment of the plaint, and, therefore, this Court should hold that the amended plaint had also been filed on the 9th November, 1953, and if this be taken to be the date of the filing of the amended plaint, the plaintiff would be within time even counting the period from the 13th October, 1953. It seems to me that a prayer for permitting amendment contained in this application was simply futile and meaningless. What the plaintiff was required to do was to put in the amended plaint; permission for the amendment having already been given to him by the order of the High Court. A mere mention like this, therefore, is of no avail to the plaintiff opposite party and can furnish no ground for him to say that he had presented the amended plaint on the 9th November, 1953. It also seems to me that this prayer was merely in the nature of pending and was not at all seriously advanced on behalf of the plaintiff nor was it pressed before the trial Judge, with the result that he gave no direction with regard to it and the amended plaint was subsequently filed in court on the 19th November, 1953. I may also point out that a comparison of the original plaint and the amended plaint put in on the 19th November atonce shows that it was not merely necessary to add the names of the two new plaintiffs in the original plaint but that certain other changes were necessary. may be, that they were a necessary consequence of the impleading of these plaintiffs, but without a properly amended plaint incorporating those changes it would be impossible to hold that the amendment could be or was duly made on the 9th November, 1953. In these circumstances, it is impossible to hold that the amended plaint in this case had been filed before the 19th November, 1953. In view of the foregoing reasons, I am constrained to allow this revision, set aside the order of the Senior Civil Judge and hold that the plaintiff opposite party's suit stands dismissed owing to his failure to file the amended plaint in the trial court within one month of the notice of the receipt of the record in the trial court. It is much to be regretted that the plaintiff's case has to be dismissed in such circumstances but the responsibility for this result must rest on his own shoulders for having acted with gross negligence in this case. As to costs, having regard to all the circumstances of the case, I have reached the conclusion that the parties shall bear their own costs in this Court and the court below. . ;