ORDER
Mohini Kapur, J.
1. The petitioner and non-petitioner No. 2, Raghunath, instituted a suit for permanent injunction against the non-petitioner No. 1. In this suit, before framing issues, the Court, namely Additional Civil Judge No. 1, Jaipur City, considered it necessary to examine the plaintiffs under Order 10, C.P.C. In pursuance of this order dated 20th March, 1985, the plaintiff Raghunath was examined under Order 10 on 14-10-1985, and thereafter Prahalad Kumar Gupta, Secretary of the petitioner-Society was directed to be present on 2-9-85. He did not appear on this dateand next dates given were 25-9-85, 28-9-85 and 15-10-85. He failed to appear on all these dates and on 15-10-85, the defendant non-petitioner No. 1, moved an application that the suit of the plaintiff be dismissed under Order 9, Rule 12, C.P.C. This application was fixed for arguments and orders on 16-10-85 and on this date the learned Civil Judge, considered the circumstance that the Secretary of the petitioner had failed to appear without any sufficient cause and as such the suit of the petitioner was dismissed under Order 9, Rule 12, C.P.C. Plaintiff Raghunath’s suil was to proceed.
2-3. On 8-11-1985, the petitioner moved an application for setting aside the order dated 16-10-85. He gave reason for his absence on the previous dates, which was that he was unwell and was an indoor-patient for some time and as such his suit, which has been dismissed, should be restored and he should be allowed to proceed with it. This application came to be decided by the learned lower Court by his order dated 17-12-85 and by this order, he held that the petitioner was not able to give a sufficient cause for his absence on 16-10-85 and as such his suil could not be restored. This order has been challenged in the present revision.
4. A preliminary objection has been raised about the maintainability of the revision petition. According to the learned counsel for non-petitioner No. 1, the suit of the petitioner was dismissed either under Order 9, Rule 12, C.P.C. or it can be said to have been dismissed under Order 10, Rule 4(2), CPC and in both cases an application for restoration has
to be moved under Order 9, Rule 9, CPC and any order of the Court refusing to accept such an application isappealable under Order 43, Rule 1(c). When an appeal is maintainable, a revision does not lie. There i.s no dispute thaT an appeal against the rejection of an application for an order to set aside the dismissal of a suit is maintainable and in order to save himself from this situation, the learned counsel for the petitioner has contended that his application for restoration was not under Order 9, but under Section 151, C.P.C. and any order passed on an application under Section 151, C.P.C. is not appealable and the only remedy to the aggrieved person is to approach this Court by way of a revision,
5. For the purposes of appreciating the contentions raised on behalf of both the sides the provisions of Order 9, Rule 12, and Order 10, Rule 4 may be reproduced here.
Order 9, Rule 12 Consequence of non-attendance, without sufficient cause shown, of party ordered to appear in person : — Where a plaintiff or defendant, who has been ordered to appear in person, does not appear in person, or show sufficient cause to the satisfaction of the Court for failing so to appear, he shall be subject to all the provisions of the forgoing rules applicable to plaintiffs and defendants, respectively, who do not appear.
Order 10, Rule 4. Consequence of refusal or inability of pleader to answer.– (1) Where the pleader of any party who appears by a pleader or any such person accompanying a pleader as is referred to in Rule 2, refuses or is unable to answer any material question relating to the suit which the Court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the Court may postpone the hearing of the suit to a future day and direct that such party shall appear in person on such day.
(2) If such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.
6. In both the above provisions, there has to be a direction by the Court that a party
should appear in person and if he does not appear and does not show sufficient cause for not appearing, the Court may pronounce judgment against him. Order 9, Rule 12, CPC provides that where a party who has been ordered to appear in person, does not appear, he shall be subject to all the provisions of the rules applicable to the plaintiffs and defendants respectively who do not appear. The difference in the two rules may be said to be that the counsel for the plaintiff or defendant should not be present for purposes of proceeding under Order 9, Rule 12, CPC but under Order 10, Rule 4, the pleader of the party is present, while the party who has been directed to appear in person is not present without lawful excuse.
7. In K. Venkata Suryanarayana Patnaik v. Royal Chit Fund, AIR 1968 Orissa 225, a suit wasdismissed underO. 10, Rule 4(2), CPC, for the plaintiffs’ non-appearance on the date fixed for issues and examination of the parties under Order 10, Rules 1 and 2, C.P.C. It was held that an application for restoration of the suit under Order 9, Rule 9 is competent and Order 17, Rule 3 has no application. It was also held that the absence of the plaintiff on the date fixed for examination under Order 10 entails dismissal of the suit in the same manner as dismissal of the suit on any other ground due to failure of the plaintiff to be present at the trial. In this case, it was the first date on which the plaintiff was directed to be present and this led the Court to hold that Order 17, Rule 3 was not applicable.
8. The learned counsel for the petitioner has tried to argue that Order 9, Rule 12 only makes the principle of the rules under Order 9 applicable to a situation where the suit is dismissed under Order 9, Rule 12, C.P.C. and according to him this does not make the provision of law applicable to the present case. According to him, it is like this that the principle of res judicata is applicable to the proceedings on a writ petition though in a sense, it cannot be said that the provisions contained in C.P.C. are applicable to proceedings on a writ-petition. This contention in my view is only a last resort to make an effort to take out his case from the provisions of Order 9, Rule 12, CPC. This rule specifically provides that Order 9 shall be applicable to proceedings taken under Rule 12
of this Order and the Court has in the present case also made an order that the suit is dismissed under Order 9, Rule 12, C.P.C. It is not the principle alone, which is applicable in the present case but the provision which confers right upon the party to seek restoration of the suit has been specifically made applicable and it is under these provisions that he can take steps for the restoration of his dismissed suit which he has done. When such an application has been refused then the remedy of the petitioner is by way of appeal and not by way of revision,
9. This Court in Balabux v. Sitaram, AIR 1961 Raj 88, has held that mere physical presence of the counsel in the Court would not in all circumstances amount to an appearance of the party himself. The counsel may be present but if he is not taking part to proceed in the case, his physical appearance would not amount to an appearance of the party. When this suit wasdismissed for want of proof, the counsel for the plaintiff was present, but the plaintiff himself was not present. It was held that the suit was dismissed in default of appearance and the application for restoration of the suit was maintainable.
10. In my opinion in the present case, the order has been specifically passed under Order 9, Rule 12, CPC and even if it is construed to be under Order 10, Rule 4(2), CPC, then too the provisions of Order 9, relating to dismissal of suit in default of appearance of the parties are applicable and this provision was made use of by the petitioner. He cannot now say that his application for restoration was under Section 151, CPC. The inherent powers of the Court become applicable only in circumstances, when there is no specific provision in the Code. In the present case the inherent powers cannot be invoked because there is specific provision to restore the suit, which has been dismissed in default of appearance of the parties. This order being appealable cannot be assailed in a revision.
11. While referring to the order dated 17-12-1985, passed by the learned lower Court the learned counsel for the petitioner has contended that the learned Civil judge adopted the position that he is not empowered to inquire into the question about the reason of the absence of the petitioner on the date
concerned and as such he has failed to exercise jurisdiction vested in it. According to him when the Court has not examined the question which he ought to have done then the petitioner has a right to move this Court u/s. 115, CPC and not go in appeal against mat order. This contention, in my view has no force. In order to make this Court vary or reverse any order passed by a subordinate Court, the first requisite is that the order is such against which no appeal lies. The question of exercise of jurisdiction not vested in it or failure to exercise jurisdiction vested in it arises only subsequently. When the present order is appealable, then this Court will not entertain a revision even if it can be said that the Court below has failed to exercise a jurisdiction vested in it.
12. Considering these circumstances, I hold that a revision is not maintainable and as such it is dismissed.