JUDGMENT
1. This appeal has been referred to us by Mr. Justice Sulaiman. In our opinion it ought to be allowed, and the suit dismissed, on the ground that the first Court was wrong to restore it. It was dismissed on the merits on January, the 31st. The plaintiff had received every indulgence. On the dale fixed for final hearing he produced no evidence. He was in contempt having failed to pay the costs, which he had been ordered to pay as a condition of obtaining an adjournment on a former occasion. The inference is that he was either unable or unwilling to pay them. The Munsif thereupon proceeded to dispose of the case by a final judgment. Unfortunately when the application was made to restore the case, he had been succeeded by another Munsif. We are satisfied that the original Munsif would have taken a different view, and he would have been right. Both the lower Appellate Court arid Mr. Justice Sulaiman were of opinion that the disposal had been on the merits. In the view we take, it is unnecessary to discuss the authorities. Our decision is based upon the special circumstances. But we are of opinion that the difficulty of working Rules 2 and 3 of Order XVII, points to the desirability, of the Rule Committee considering the question of their amendment. We are, also of opinion that the principle established by some of the decided cases, to the effect that, when a party instructs a lawyer to appear for him, and to apply for an adjournment, and when that is refused, to say that he has no further instructions, that does not amount to an “appearance” by the party, requires re-consideration, or amendment by a new Rule.
2. The appeal is allowed, and the suit dismissed, with costs in all Courts, including fees in this Court on the higher scale.
