ORDER
S.V. Maruthi, J.
1. This revision petition is filed against the order of the Subordinate Judge, Bhimavaram in Civil Misc. Appeal No. 7 of 1990. The defendant is the petitioner in this revision petition. The respondent filed a suit O.S. No. 375 of 1985 in the Court of the First Additional District Munsif, Bhimavaram on the basis of a promissory note. The suit was posted on 26-4-1989 for the cross-examination of P.W.1. The defendant, who was residing at Hyderabad, engaged a Counsel. The Counsel filed an application seeking adjournment of the matter. The learned First Additional District Munsif refused to grant adjournment and declared the defendant ex parte. On the very same day, an ex parte decree was passed. The. petitioner filed an application I.A. No. 551 of 1989 to set aside the ex parte decree, which was dismissed by the First Additional District Munsif. Against that order, the defendant filed Civil Miscellaneous Appeal No. 7 of 1990 before the Subordinate judge, Bhimavaram, which was also dismissed. Hence the revision petition by the defendant in this Court.
2. The learned Counsel appearing for the petitioner submitted that on 26-4-1989 the defendant could not be present in Court as she was at Hyderabad and she was represented by the Counsel. Since the Counsel was engaged in another Court, he sought adjournment of the matter; but the adjournment was refused. Therefore, the only course open to the trial Court is to close the case and adjourn the same to the next day. He should not have decreed the suit ex parte. In support of his contention, the learned Counsel relied on a judgment of this Court reported in Mannam Subba Rao v. K. Polalah Naidu, 1975 (2) An.W.R. 471. The learned Counsel also submitted that there was sufficient cause for the non-appearance of the Counsel as he was engaged in another Court. Further, according to the learned Counsel, on the very next day, viz., on 27-4-1989 an application is set aside the ex parte decree was filed and therefore, there was no negligence on the part of the Counsel. The learned Counsel further submitted that the appellate Court, while dismissing the application filed by him, stated that on 26th April 1979 the defendant was not ready and the petition for adjournment was filed on behalf of the defendant and it was dismissed and as the defendant was not present in Court she was set ex parte and the suit was decreed with costs. Therefore, it follows that the contention of the defendant that the ex parte decree was passed against the principles of natural justice is correct. Admittedly the petition for adjournment was filed by the advocate for the petitioner who has got no right to do so. In any event, the Advocate was not having the record with him. It is, therefore, clear that the Counsel for the petitioner was not prepared to proceed with the cross-examination of P.W.1 on 26-4-1989. The learned Counsel submitted that in the above circumstances the only course open to the trial Court is to adjourn the matter after closing the case and on the adjourned date if the petitioner-defendant is not present, then only an ex parte decree can be passed. The learned Counsel also submitted that the observation of the appellate Court that the application to set aside the ex parte decree was filed with an affidavit of the Counsel only and no affidavit on behalf of the defendant was filed and therefore, the petition to set aside the ex parte decree is not maintainable is not correct and in view of Order 17 Rule 3 Code of Civil Procedure, an affidavit could be filed only by a party. In this case the defendant, who was away at Hyderabad, was not aware of the fact that the Counsel engaged by her was engaged in another Court and could not appear in the Court and therefore, she could not have sworn to an affidavit and file the same in support of the petition to set aside the ex parte decree. The procedure to file an application to set aside an ex parte decree is to file a petition signed by the advocate and an affidavit filed by the party. In this case, since the defendant was not aware of what happened on 26-4-1989 she could not file an affidavit and it was only the Advocate who was present on that day, that could file an application and it is the proper application and the learned Subordinate Judge is not correct in holding that there was no proper application to set aside the ex parte decree.
3. The learned Counsel appearing for the respondent vehemently opposed the arguments of the learned Counsel for the petitioner. According to him, it is not a case where the defendant was not effectively represented in the Court. He contends that the clerk of the Counsel appearing on behalf of the defendant filed the application seeking adjournment of the matter for one month on the ground that the record was not available with him. Another junior Counsel also appeared on behalf of the Senior Counsel and sought for an adjournment. After rejecting the prayer for adjournment, the trial Court said that the said Advocate appeared in the absence of the senior Counsel but sought adjournment on behalf of the senior Counsel. Therefore, the defendant was effectively represented and consequently the order passed is a judgment on merits under Order 17 Rule 3 CPC and it is not a case falling under Order 17 Rule 2 CPC. Therefore, Order 9 Rule 13 CPC is not applicable to the facts of the present case. In support of his contention, the learned Counsel relief upon two judgments -K. Ravindra Devadiga v. Sebastian Britto, and Kurilal Rungta v. Smt. Banarsi Devi and Ors., AIR 1976 All. 94. In Kurilal Rungta v. Smt. Banarsi Devi and Ors., AIR 1976 All. 94 it was held:
“The case would, however, not be covered by Rule 3 if the defendant, to whom time has been granted to produce his evidence and the case is adjourned and listed for final hearing on an application moved by him in that behalf but on the adjourned date of hearing he fails to put in appearance in the case. In such circumstances the Court would proceed under Rule 2 as is provided under sub-clause (b) of Rule 3 of Order 17 of the Code. But where the defendant is either personally present or is deemed to be present as envisaged by Rule 2 and the default has been committed by him in doing an act for which time has been granted, the case would be covered by Rule 3 of Order 17 and the Court can proceed to decide the suit forthwith.”
In K. Ravindra Devadiga v. Sebastian Britto, it was held:-
“The fact that the Counsel for the defendant, while the plaintiff landlord was giving evidence, did not participate by cross-examining the plaintiff, cannot be an excuse to plead that the decree passed in suit was ex parte under Order 17, Rule 2 and not under Order 17, Rule 3. If the Counsel had no instructions, he had only choice to retire from the case but he cannot plead want of instructions and still claim that on that account the defendant should be treated as ex parte. Defendant’s application under Order 9, Rule 13 for getting aside decree ex parte is therefore, not maintainable.”
In view of the above judgments, the learned Counsel submitted that since the defendant was effectively represented by a Counsel seeking an adjournment on behalf of his senior Counsel, it cannot be said that the defendant is not prevented and therefore, disposal of the case should be treated as disposal on merits. The only remedy available to the defendant is to file an appeal against the said judgment and not an application to set aside the ex parte decree.
4. The learned Counsel next submitted that an application to set aside an ex parte decree should be filed by the party and in this case the petition was signed by the Counsel engaged by the defendant and therefore, it is not an application filed by the defendant to set aside the ex parte decree. Even on this ground the application is not maintainable and both the Courts below are justified in rejecting the application to set aside the ex parte decree. The learned counsel also submitted that the matter was adjourned from 12-12-1988 to 26-4-1989 from time to time on seven occasions and on those occasions it was adjourned for the purpose of cross-examining the plaintiff, which indicates that the defendant was not interested in prosecuting the matter and, therefore, no indulgence should be shown at this stage to the petitioner. Therefore, the learned counsel submitted that the revision petition should be dismissed.
5. The first question that arises for consideration is whether the finding by both the Courts below that there was no sufficient cause to set aside the ex parte decree is correct?
6. It is an admitted fact that the defendant was residing outside the Court within whose jurisdiction the suit was filed. The Counsel who was engaged by the defendant was on that day, i.e., 26-4-1989, engaged in another Court. He filed an affidavit explaining the circumstances under which he was not present in the Court. According to the affidavit filed by the Advocate, the petitioner’s Advocate’s clerk was present in the Court hall and a petition was presented by Sri C. Lingamurthy, Advocate. He also stated that the petitioner’s Counsel who was engaged in the Subordinate Judge’s Court, could not personally attend being engaged in work in another Court but he was personally represented in Court by the clerk and another Advocate. His physical non-appearance in Court should not be treated as absence. In other words, the Counsel could not be present as he was engaged in another Court and he was represented by the clerk and another Advocate Sri C. Linga Murthy. The contention of the learned Counsel for the respondent is that on previous occasions the matter was adjourned for more than six times and therefore, it is not a case where indulgence should be shown. In this context we may refer to the judgment relied on by the learned Counsel for the petitioner in Mannam Subbarao v. K. Polaiah Naidu (1 supra) wherein it was held:
“As regards the prior default or negligence if any, I do not think that the Lower Court can make it a ground to reject the application for setting aside the ex parte decree. Under Order 9 Rule 13 of the Code of Civil Procedure, the petitioner has to satisfy the Court that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. It means that he has to satisfy only sufficient cause for his non-appearance on the date when the suit was called for hearing and when he was set ex parte. The Code does not also require such a petition to satisfy the Court that throughout his conduct has been not blameworthy and that there was no prior default on his part.”
I am satisfied that there was sufficient cause for non-appearance of the defendant in view of the affidavit filed by the learned Counsel appearing on behalf of the defendant.
7. The argument advanced by the learned Counsel for the respondent is that the representation by the Counsel and the clerk on behalf of the senior Counsel appearing for the defendant is an effective representation and, therefore, the defendant was deemed to have been present in the Court and consequently it should be treated as a judgment on merits and not an ex parte decree. In this context we may refer to the amendment to Order 17 Rule 2 Code of Civil Procedure introduced by the Government of Andhra Pradesh. By means of this amendment, an explanation was added to Order 17 Rule 2, which provides:
“Mere presence in Court by a party or his Counsel not duly instructed shall not be considered to be an appearance of any party within the meaning of this rule.”
Therefore, from the mere fact that the Counsel on behalf of the defendant was represented by the clerk and another advocate, it cannot be said that the defendant was present in the Court, the reason being that they were not instructed to argue the matter. Explanation to Order 17 Rule 2 C.P.C. is applicable to this case and the presence of the Advocate and the clerk of the advocate cannot be treated as appearance by the party. Therefore, the argument of the learned Counsel that it should be deemed to be presence of the defendant and therefore, the judgment should be treated as one on merits cannot be accepted. The decisions relied upon by the learned Counsel, viz., K. Ravindra Devadiga v. Sebastian Britto (2 supra) and Kurilal Rungta v. Smt. Banarsi Devi and Ors. (3 supra) are not applicable to the facts of the present case. In the case of Allahabad, there was an amendment to Order 17 Rule 2, Code of Civil Procedure. The said amendment reads as follows:-
“No party shall be deemed to have failed to appear if he is either present or represented in Court by agent or pleader, though engaged only for the purpose of making an application.”
In view of the said amendment, the Allahabad High Court expressed the view that the defendant was deemed to be present as envisaged by Order 17 Rule 2 C.P.C. and therefore,the disposal should be treated as disposal under Order 17 Rule 3 C.P.C. In view of the amendment to Order 17 Rule 2 C.P.C, the judgment of the Allahabad High Court is not applicable to the facts of the present case. So far as the decision in K. Ravindra Devadiga v. Sebastian Britto (2 supra) is concerned, it is a case where the Counsel for the defendant was present but he did not participate in the proceedings. The learned Judges held:
“…….his non-participation by cross-examining the plaintiff, in defence of defendant’s case cannot be an excuse to plead that the decree and judgment passed in the small cause suit was one under Order 17, Rule 2 and not under Order 17 Rule 3 of the C.P.C. On that date when the plaintiff was examined, the defendant was not required to do anything at all. Therefore, pressing into service Sub-rule (2) of Order 17 of the C.P.C. is not of any assistance to the petitioner.”
This judgment is distinguishable on facts. In this case, as pointed out earlier, the Counsel appearing for the defendant was absent as he was engaged in another Court and was represented by a junior Counsel and the clerk. Therefore, the judgment of the Karnataka High Court is not relevant to the facts of the present case.
8. The next argument of the learned Counsel for the respondent is that the application to set aside the ex-parte decree should have been filed by the defendant and it not having been filed by the defendant, it is not maintainable. In this context the learned Counsel for the petitioner relied on the decision of this Court in Hussaini Begum (Hussaini Bee) v. B. Ramachandraiah and Anr., 1976 (1) An.W.R. 325. In that case the facts are as follows: –
I.A. No. 213 of 1973 was dismissed by the Second Additional Judge, City Civil Court, Hyderabad. That application was filed supported by the affidavit of the petitioner for restoration of the suit which was dismissed for default. It was contended before the learned Judge that the application was not maintainable and also that there was no sufficient cause for non-appearance of the plaintiff on 26th February 1973 when the suit was dismissed. The learned judge held:
“It is true that the petition for restoration was signed by the plaintiff and not by her Advocate. This omission is an irregularity and does not the proceeding in any way. It was quite clearly the duty of the office before numbering the petition to return the same as the petition was not signed by the Advocate. It was too late in the day, on the date of hearing of the application, to hold that the petition was not maintainable on the ground that it was not signed by the Advocate. If the defect was pointed out by the office, it would have been rectified within the time granted. I am not impressed therefore that the application is in any way vitiated by reason of the fact that the Advocate had not signed the petition.”
Admittedly in this case, the affidavit could not have been filed by the defendant as he was not aware of that fact. Further, the petition was filed by the Advocate who was engaged by the defendant and since he was aware of the facts that happened on that day, he only was competent to file the affidavit. Therefore, the application filed by the Counsel supported by the advocate is maintainable. The lower Court is not correct in holding that the application is not maintainable.
9. I may also refer to the judgment of the Supreme Court in Savithri Amma Seethamma v. Aratha Karthy and Ors., wherein it was held:-
“Now it is obvious that the appellant could not appear at the hearing of the revision application preferred by the first defendant because the Advocate engaged by him was occupied in another Court and this fact was stated by the learned Advocate in the affidavit made by him in support of the application for rehearing. We are, therefore, of the view that on the facts and circumstances of the present case, the appellant had sufficient cause for not being present at the hearing of the revision application and the learned single Judge of the High Court ought, in the circumstances, to have allowed the application and reheard the civil revision petition applying the principle underlying Order XLI, Rule 21 of the Code of Civil Procedure.”
No doubt this is a case which arose in a revision petition. However, the principle enunciated in the said decision is also applicable to the facts of the present case. The argument of the learned Counsel for the respondent that the decision in Mannam Subbarao v. Polaiah Naidu (1 supra) is a case under Order 9 Rule 9 C.P.C and therefore cannot be extended to cases which arise under Order 9 Rule 13 C.P.C. cannot be accepted, for the reasons mentioned in the above paragraphs. Therefore, I am of the view that the application filed under Order 9 Rule 13 C.P.C. is maintainable. There is sufficient cause for the non-appearance of the Counsel for the defendant on 26-4-1989. There is no negligence on the part of the Counsel or the defendant in arguing the matter. For the reasons mentioned above, the order in Civil Miscellaneous Appeal No. 7 of 1990 confirming the order of the learned First Additional District Munsif, Bhimavaram in LA. No. 551 of 1989 is set aside. The lower Court is directed to commence the proceedings from the stage of cross-examination of P.W.1. The lower Court is directed to dispose of the suit within six months from the date of receipt of the records.
10. However, I would like to add that the defendant took as many as seven adjournments commencing from 12-12-1988 to 26-4-1989. Having regard to the above, this is a case where the plaintiff should be compensated. Accordingly, the defendant is directed to pay costs of Rs. 1,000/- payable to Sri Sriramachandra Murthy, Counsel for the respondent-plaintiff within one week from to-day.
11. The Civil Revision Petition is allowed. There will be no order as to costs.