ORDER
P.S. Narayana, J.
1. Heard Sri S.C. Rangappa, the learned Counsel for the Revision Petitioners and Sri G.V.R. Choudhry, the learned Counsel representing the respondent.
2. The Civil Revision Petition is filed by the Revision Petitioners as against an order passed in I.A.No. 2453 of 1999 in O.S.No. 118/98 on the file of Junior Civil Judge, Gudivada dated 27-10-2000. The Revision Petitioners are the petitioners in I.A.No. 2453/99 and defendants in O.S. No. 118/98 on the file of Junior Civil Judge, Gudivada. The application was filed in the Court below under Section 5 of the Limitation Act 1963 praying for condonation of delay of 43 days in filing an application to set aside ex parte decree so as to enable them to contest the suit in the interests of justice.
3. The respondent/plaintiff filed the suit for recovery of Rs. 14,200/- on the basis of a promissory note dated 15-11-1995. The affidavit in support of the application was sworn to by Sri L. Shankar Rao, Advocate, Gudivada, It is pertinent to note that none of the petitioners-defendants had sworn to any affidavit in support of the application. The Counsel had stated that the suit is of the year 1998 and he was under the impression that the Court would not take up the matter for trial and hence he was not present in the Court and had not represented the matter in Court on 22-7-1999 and further it was stated that he was engaged in the I Additional Judicial First Class Magistrate’s Court at Gudivada in a criminal matter and hence his absence on the particular day was not wilful. It was also stated in the affidavit that he came to know of the passing of ex parte decree only on 8-10-1999 when he referred the Court diary and in such circumstances he had not informed the date of adjournment to his clients and hence the relief of condonation of delay of 43 days in filing an application to set-aside ex parte decree was prayed for. The respondent had resisted the said application denying all the allegations made in the affidavit of Sri L. Shankar Rao, Advocate for petitioners and it was specifically stated that it is the duty of the party to note the dates of adjournments and to be present in Court even though the Advocate of the party is not present and the opinion of the deponent of the affidavit that the Court would not take up matters of the year 1998 cannot be said to be sustainable ground and there are no grounds, muchless valid grounds, for condoning the delay.
4. Sri S.C. Rangappa, the learned Counsel representing the Revision Petitioners had vehemently contended that the affidavit sworn to by an Advocate should be given due weight and in the affidavit in support of the application it was specifically stated that he was engaged in I Additional Judicial First Class Magistrate’s Court, Gudivada in a criminal matter and this itself will constitute sufficient cause for condonation of delay. The learned Counsel had placed strong reliance on Savithri Amma Seethamma v. Aratha Karthy, and also Hussaini Begum v. Ramachandraiah, 1976 (1) An.W.R. 325.
5. Sri G.V.R. Choudhry, the learned Counsel representing the respondent with all vehemence had contended that the application is not supported by the parties’ affidavit at all and the affidavit filed by the Counsel alone without an affidavit of the parties to the litigation cannot be taken into consideration for the purpose of appreciating the application under Section 5 of the Indian Limitation Act, 1963. The learned Counsel also had drawn my attention to the conduct of the Revision Petitioners and also several subsequent events which had taken place after obtaining the decree.
6. The fact that the Advocate alone had sworn to the affidavit and the affidavit of any one of the parties had not been filed in support of the application is not in dispute. In C.R.P.No. 394/96 dated 23-1-1998 it was held that it is the duty of the petitioners to attend the Court on the date when the suit was posted and since the petitioners have failed to prosecute the matter diligently, it was held that there were no reasons to interfere with the order questioned in the said Revision. It is pertinent to note here that the reasons why both the Revision Petitioners were unable to attend the Court on the particular day will be within the knowledge of the Revision Petitioners only and none of the Revision Petitioners had filed any affidavit relating to the same. The reason explained in the affidavit of the Advocate is that he had not intimated the date of adjournment to the petitioners. In matters of this nature, it is always desirable and advisable that the parties alone should sworn to the affidavits in support of such applications and depending upon the facts and circumstances if it is essential, then the affidavit of the Counsel on record or the erstwhile Counsel, as the case may be, or the affidavit of clerk of the Counsel and supporting affidavits of like nature, can be thought of with a view to afford further strength to the case of the erring parties. In fact, Sub-rule (1) of Order 3 Rule 4 of the Code of Civil Procedure specifies that no Pleader shall act for any person in any Court unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized by or under a power of attorney to make such appointment. In Hyderabad Import Export Co., v. United Trading Co., AIR 1958 A.P. 652 it was held that the relation between a pleader and his client is in the final analysis no more or no less than that of principal and agent and hence the client may ratify the acts of his pleader and ratification means previous authority. It is no doubt true that in Courts certain default orders will be made due to the mistakes on the part of the Advocates, Advocates Offices as such. Even in such cases, since the concerned party will be the really affected and aggrieved party it is always advisable to file an application along with the sworn affidavit of the party, and in case in the peculiar facts and circumstances it is felt that a supporting affidavit of either the Counsel or the clerk of the Counsel or other persons who are otherwise concerned with explaining the cause, may also be filed along with the said application. However, an Advocate as such filing a personal affidavit in support of the application, normally should be discouraged and deprecated. In Ananta Pandu Poroba Desai and Ors. v. Smt. Lalitha Poi, AIR 1975 Goa, Daman, Diu 30 it was held that an application to set aside ex parte decree by an Advocate on his own behalf is not maintainable. In the decision 2nd referred supra, it was held that it was the Advocate alone who could file an affidavit stating the fact of being engaged elsewhere at the time when the suit was called and dismissed and the view of the lower Court that the petition for restoration was not supported by an affidavit of the plaintiff and as such is not maintainable is wholly erroneous. In the decision referred (1) supra, the Apex Court in the peculiar facts and circumstances of the case held that there was sufficient cause for not being present at the time of hearing of the Revision application and hence an opportunity was given to have the matter disposed of on merits in accordance with law. In Union of India v. J. Bhaskar Rao, it was held that absence of a Counsel due to his engagement in another Court is not a sufficient ground for setting aside an ex parte order.
7. In fact, the Court below had recorded detailed reasons in paragraphs 5, 6 and 7 of the impugned order and recorded clear findings and the facts and circumstances why the Court below was not inclined to accept the arguments advanced by the Revision Petitioners that their absence before the said Court on that day is a sufficient ground to condone the delay of 43 days in filing an application to set aside ex parte decree. Inasmuch as the Court below had exercised discretion properly while negativing the relief to the Revision Petitioners, I do not find any jurisdictional error committed by the Court below so as to interfere under Section 115 C.P.C.
8. Hence the Civil Revision Petition is devoid of merits and accordingly the same is dismissed. But however, in the facts and circumstances, no order as to costs.