JUDGMENT
Madhavan Nair, J.
1. This is an appeal against the order of the Subordinate Judge of Trichinopolyi refusing to restore to file O.S. 87 of 1920 which was dismissed by his predecessor on 17th September 1923. The suit was for partition and recovery of one-third share of the plaint properties. The plaintiff based his claim on a “will” purporting to have been executed by the deceased father of himself and defendants 1 and 2. The contesting defendants raised the plea that the “will” was not a true one binding on them. After the framing of the issues the case was posted for final hearing, but it had to be adjourned from time to time as the “will” and the connected records had been filed in a criminal Court in some proceedings between the parties. The case was last adjourned for the purpose of securing the “will” to 4th September 1923. On 3rd September 1923, the “will” was received by the Court. On the 4th, as the parties were not ready with their evidence, and at their joint request, the case was adjourned to 17th September 1923. On 17th September 1923 an application was made for an adjournment by the plaintiff’s vakil; but the Subordinate Judge dismissed the application. When the adjournment was refused the plaintiff’s vakil does not seem to have said that he had no instructions but he took no further part in the case. The plaintiff himself was present in Court. He also asked for an adjournment and when that was refused he refused to go on with the case. The Subordinate Judge then wrote a judgment and dismissed the plaintiff’s suit on 17th September 1923. As regards the plaintiff’s request to adjourn the case, this is what appears in the B diary:
Plaintiff in person wants time again. Time refused. Plaintiff refuses to go on with the case. Suit is dismissed without costs.
2. The plaintiff afterwards filed an application for restoration. The Subordinate Judge who dismissed the suit sent notice to the defendants. His successor heard the application and declined to restore the suit; the present appeal is against his order.
3. It is argued before us by the respondents that the disposal of the suit by the Subordinate Judge was under Order 17, Rule 3, Civil P.C., that the plaintiff’s remedy, if any, is only by way of review or appeal and that, in the circumstances, no petition could be maintained under Order 9, Rule 9, Civil P.C., for restoration. On behalf of the petitioner it is contended that the suit was disposed of under Order 17, Rule 2 and that Order 9, Rule 9, Civil P.C., isapplicable.
4. The first question for consideration is whether, when the suit was dismissed by the Subordinate Judge, it was disposed of by him under Order 17, Rule 3, or under O.17, Rule 2, Civil P.C. In Pichamma V. Seeramulu [1918] 41 Mad. 286, it was held that where, at the close of the plaintiff’s case, an adjournment was granted to the defendant to enable him to produce his evidence and he failed to appear at the adjourned hearing, and the Court proceeded to pass a decree against him, the case came within Order 17, Rule 2 and the decree could be set aside under Order 9, Rule 13. The learned Judges, Sadasiva Ayyar and Kumaraswami Sastriar, JJ. (Wallis, J. dissenting) point out that:
Rules 2 and 3 of O.17, Civil P.C., are mutually exclusive. Rule 2 applies to all cases of absence of parties, whether time was granted or not, to do any of the acts mentioned in Rule 3 of the order, while Rule 3 applies only to cases where the parties are present and commit default of the kind mentioned in the rule.
5. According to this decision the questions whether Order 17, Rule 2 or Order 17, Rule 3, Civil P.C., will apply to the present case will depend upon the question whether the plaintiff failed to appear on 17th September 1923 within the meaning of Order 17, Rule 2 read with Order 9 Rule 9, Civil P.C. To recapitulate the necessary facts for the decision of this question: on the adjourned date the plaintiff’s vakil asks for a further adjournment. It is refused; when refused he sits down without saying anything and takes no further part in the case; the plaintiff then asks for an adjournment. That is also refused and he too does not take any further part in the case. The Subordinate Judge then dismisses the suit writing a short judgment. On these facts can we say that the plaintiff failed to appear on 17th September 1923 within the meaning of Order 17, Rule 2? In support of his argument, that the plaintiff must be considered to have appeared at the time of the hearing, the respondents vakil refers to two facts, (1), that the plaintiff’s vakil after the adjournment was refused did not formally withdraw from the case, and (2) that, even if it can be considered that he withdrew from the case, the plaintiff himself appeared when he asked for an adjournment. The Appellant’s vakil argues that though his vakil did not formally withdraw from the ease, since he did not take any further part in the proceedings his attitude should be interpreted as one of withdrawal from the case and the plaintiff’s presence does not amount to appearance in the case when he is represented by a pleader.
6. Various decisions of this and other High Courts have been brought to our notice. It is difficult to reconcile all of them and extract from them a general rule applicable to all cases. In this judgment I propose to consider only those decisions which I think throw some light upon the points at issue. In Manickam Pillai v. Bathummal A.I.R. 1925 Mad. 21, it was decided that when a pleader engaged in a case reports that he had no instructions, whether he has asked for an adjournment and been refused or not, he must be deemed not to have appeared in the case thereafter, even if there should be no formal withdrawal in writing of the vakalat. This decision in terms does not apply, because the pleader in that case wrote at the back of the plaint that he had no instructions except to apply for an adjournment. The learned Judges held that this was a perfectly good withdrawal from his duties and obligations under the vakalat. While basing the decision on that short ground the learned Judges refer to a decision in Radha Kishan v. Collector of Jaunpur [1901] 22 All. 220, the facts of which are as follows: That day (i. e., the day fixed for hearing) the pleader for the applicant stated that he could not conduct the ease, and he had received no instructions from his client. Thereupon the Court proceeded to try the case and tried and decided the issues on the evidence adduced on the plaintiff’s behalf and decreed the suit against the applicant. Their Lordships of the Privy Council held that the applicant could not be held in the circumstances to have appeared. After drawing attention to the facts of the case and the decision of the Privy Council the learned Judges point out thus:
We think that if this matter comas before the Court again, notice will be taken of that decision, because, so far as appears, a wider question (the italics are mine) is determined there, as there is no statement-a feature that exists in this case to the effect that the pleader had filed an instrument in writing making himself out of his vakalat, a withdrawal on his part which Order 8, Rule 4 contemplates.
7. This observation would suggest that in the learned Judge’s opinion the Privy Council judgment lends support to the view that questions of appearance or non-appearance in oases of this kind must be decided with reference to the special circumstances of the case irrespective of the particular fact whether the plaintiff’s pleader withdrew his vakalat formally, or whether he stated that he had no instructions. These would be narrow grounds for deciding the question. “Where these exist it would be easier to decide the point. But even if we have not such clear indications that the plaintiff’s pleader does not appear, still there may be other circumstances from which inference as to his appearance or non-appearance may be drawn. In Damodar Das v. Raj Kumar Das A.I.R. 1922 Pat. 485, the question arose for consideration whether there was appearance by the defendant within the meaning of Order 9, Civil P.C., in the following circumstances: The trial took place on 11th, 12th and 13th August 1919. On the 11th defendants’ pleader appeared and asked for an adjournment which was refused. He renewed the application on the following day and stated that he had no instructions from his client to cross-examine the plaintiff whose evidence had been taken on the 11th. This application was again refused. The pleader took no part in the trial on either day…. It was held that there was no appearance from first to last on behalf of the defendant and the provisions of Order 9, Rule 13 would apply. The pleader in this case did not formally withdraw his appearance or state that he had no instructions. It is suggested that when the defendant’s pleader declined to cross-examine when he could have cross-examined the plaintiff, the Court was entitled to infer from his conduct that he withdrew from the case. In the present case as the plaintiff’s pleader could not have done anything at all, it is stated that the inference of non-appearance cannot be drawn. I cannot accept this distinction. The inference of non-appearance is equally possible in both cases. If the facts show that he was not in a position to do anything at all, then I think the inference that he withdrew from the case would be stronger. However that may be, the question is one of inference from the particular facts of each case. In this connexion it is also important to note that in the Patna case Damodar Das v. Raj Kumari Das A.I.R. 1922 Pat. 485 on the 11th, when the adjournment asked for was refused, the defendant’s pleader did not state anything and took no part in the trial. He simply kept quiet as the pleader did in the present case while the case was proceeding. In the circumstances the Court thought that the pleader’s conduct showed that he disassociated himself from further proceedings and that there was no ” appearance” on that day also. In this special aspect 1 Pat. 188 is almost identical with the present case. In Muhammad Bakar Ali v. Chulhai Mahton [1919] 4 Pat. L.J. 712, when the case was taken up for trial after various adjournments, the Court recorded the following order:
The pleader for the plaintiff states that he is unable to adduce any evidence. The plaintiff is also present in Court, but does not adduce any evidence in support of his case. The defendant is ready. Ordered that the suit be dismissed for default of the plaintiff. The defendant will get costs of the suit.
8. From the fact, the pleader stated that he was unable to adduce any evidence, the learned Judges drew the inference that he was not duly instructed and able to answer any material questions and that, therefore, ha did not appear on behalf of his client. The pleader did not say he had no instructions and he did not withdraw his vakalat also. In Maung Pway v. Saya Pe A.I.R. 1927 Rang. 46, the question of appearance or non-appearance by a pleader arose for consideration in the following circumstances:
Case called. U Thu Daw for plaintiff was present. Plaintiff and his witnesses are absent. Aiyar, for defendant 2, present. Defendant 1 with Maung Hla present. U Thu Daw for plaintiff states that his client has mistaken the date of hearing most probably. His witnesses are also absent. Judgment passed.
9. It was held in those circumstances that the plaintiff’s pleader could not be said to have appeared for his client duly instructed and able to answer all questions material to the suit. In Arunachalam Goundan v. Katcha Goundan 47 M.L.J. 514, at p. 516, the following observations appear:
It has bean argued that it is necessary for a pleader to say in such circumstances that ha severs his connexion with the case, or that he withdraws his vakalat. I do not think any set form of words is necessary to convey to the Court the information that he has ceased to appear and that he, in fact, does not appear for his client. There is no magic in the words “I have ceased my connexion with the case. ” In my opinion the mere attendance of a pleader who, for want of instructions, is unable to answer all material questions relating to the suit is not an appearance on behalf of his client.
10. The term ” appearance ” is not defined, in the Code. To constitute ” appearance ” within the meaning of Order 9, Civil P.C. by a pleader, I think, it must be shown that the pleader is duly instructed and able to answer all material questions relating to the suit: see Order 5, Rule 1, Sub-clause (2): also Satish Chandra Mukerjee v. Ahara Prasad Mukarjee [1907] 34 Cal. 403. If the plaintiff’s pleader says that he has no instructions, or if he withdraws his vakalat, or if he says that his instructions are limited only to asking for an adjournment and nothing more, or if ha says when the case is taken up for trial that he is unable to adduce any evidence, then according to the decisions I have referred to, it can be said that the plaintiff’s pleader is not duly instructed and able to answer the material questions put by the Court and, therefore, he does not appear on behalf of his client. When the pleader asks for an adjournment which is refused and does not take any part in the trial, it being obvious that ha cannot help his client as he knows nothing about the case, can it be said that the pleader is duly instructed and able to answer material questions put by the Court? To my mind the inference to be drawn from the circumstances is clear The conduct of the vakil in not taking any part in the trial when his request for an adjournment is refused shows that he does not propose to appear in the case any further and that ha disassociated himself from the case. In such circumstances it cannot be said that the pleader is duly instructed and able to answer all material questions put by the Court relating to the suit, The decisions that I have referred to are in support of this conclusion. There mare attendance of a pleader who is obviously unable to answer all material questions relating to the suit cannot be appearance on behalf of his client In cases like the present, I think the trial Courts will be well-advised in asking the plaintiff’s vakil whether he appears in the case any longer; if they do so, much time and trouble will be saved for the parties as well as for the appellate Courts. This Court has laid down the principle that
a generous construction should be placed on the enactment which gives the power to restore: see Gopala Row v. Maria Susaya Pillai [1907] Mad. 274, and, I think, as shown by the decisions, has always acted on it.
11. The cases of this Court cited by the respondents do not conflict with the above view. The decision in Rama Mannadi v. V. Krishnan Menon [1903] 26 Mad. 237, cannot be treated as an authority on what constitutes ” default”: see Muhammad v. Manavikrama A.I.R. 1923 Mad. 13. The decision in Visvanatha Asari v. Sami Asari A.I.R. 1924 Mad. 43, simply follows Rama Mannandi v. V. Krishnan Menon [1903] 26 Mad. 237. A perusal of the judgment will show that the case in A. Bakayya v. A. Venkatanarasimham [1917] M.W.N. 565 is a decision on the special facts of the case. In Pazhaniandi v. Naku A.I.R. 1927 Mad. 109, the question of appearance was not considered.
12. Then it is said that the plaintiff himself appeared in the case as he asked for an adjournment. The personal appearance of the plaintiff does not make any difference. As pointed out in Gopala Row v. Mari Susaya Pillai [1907] Mad. 274
the plaintiff was not appearing in person but by his pleader, and if it can be said that the pleader failed to appear, as from the time he declined to proceed, it follows that the party also failed to appear: see also Muhammad Bakar Ali v. Chulhai Mahton [1919] 4 Pat. L.J. 712.
13. The fact that he took some part in the case does not affect the situation. As I am of opinion that this is a case where the plaintiff did not appear either by himself or by his pleader, when the case was disposed of by the learned Subordinate Judge, the disposal of the case falls under Order 17, Rule 2, according to the decision in Manickam Pillai v. Bathummal A.I.R. 1925 Mad. 21; and so, if there is sufficient cause for his non-appearance the Court can make an order setting aside the dismissal.
14. Before discussing the merits, the last argument, advanced to show that the plaintiff should have preferred an appeal, may be briefly noticed. It was argued that even if the order dismissing the suit falls under Order 17, Rule 2, if the Subordinate Judge has disposed of the case by means of a judgment, as he has done in this case, then the plaintiffs’ remedy lies in prefering an appeal against the judgment. The only decision of this Court referred to in this connexion, Muhammad v. Manavikrama A.I.R. 1923 Mad. 13, does not give the slightest support to this proposition, I do not think that there is anything in the form of the judgment which prevents me from holding that the suit was dismissed for plaintiffs’ default of appearance.
15. Now as regards the merits of the application for restoration: the lower Court has found that the plaintiff has not made out a case for restoration. I cannot agree. The long delay in the disposal of the case was not due to any conduct on the part of the plaintiff. The case could not be taken up before 4th September 1923, as the “will” and the connected records were in the criminal Court. On that day both parties applied for an adjournment to 17th September 1923. The plaintiff had taken out summonses in proper time for the witnesses. It was not due to his fault that the witnesses were not served. The witnesses were absent from their places of residence. I think the Court should have granted the adjournment the plaintiff asked for. It is stated that the Judge was prepared to issue arrest warrants for the witnesses who had not come, but there was no case made out for the issue of arrest warrants. Further, there is a good deal to be said in favour of the plaintiff’s view that he did not want arrest warrants at that stage because if they were brought to Court under such compulsion they might not give evidence in his favour. The learned Subordinate Judge says that the plaintiff might have gone into the witness-box and given some evidence and after taken the judgment in appeal to get the necessary relief. This observation is altogether beside the point. The question is whether in the circumstances he is entitled to the restoration of the case. I think he is.
16. In support of his case Mr. Ramadoss for the respondents no doubt relied upon the absence of merits in the restoration application, but he relied more strongly on the technical objection that the application under Order 9, Civil P.C. will not lie and the proper procedure was to prefer an appeal against the judgment of the Subordinate Judge dismissing the suit.
17. I would allow this appeal, restore the suit and send it back for trial on the merits according to law.
Curgenven, J.
18. The question which this appeal raises is whether the Subordinate Judge of Trichinopolyi indisposing of O.S. 87 of 1920 on his file, should be deemed to have dismissed it for default of the plaintiff’s appearance, under Order 17, Rule 2 read with Order 9, Rule 8, or whether he proceeded to decide it under Order 17, Rule 3. The facts, so far as they are necessary for the determination of this question, are not in dispute. The hearing of the suit, which had been delayed owing to some connected criminal proceeding was fixed for 17th September 1923. On the 9th the plaintiff had applied for summonses to two of his witnesses, the writer and attestor, respectively of a will upon which he relied, but the amin entrusted with the service reported that they were absent and that he had therefore affixed the summonses. Accordingly, on the 17th, the plaintiff’s pleader presented a petition on his behalf praying for an adjournment. This prayer was orally repeated by the pleader to the Court when the case was called on, and the plaintiff himself, who was present, preferred the same request. The learned Subordinate Judge refused it, for reasons which it is not pertinent at this point to discuss and dismissed the suit.
19. The first point raised by Mr. Ramadoss for the respondents (defendants) is that in form and substance the judgment of the Court was not a simple dismissal for default of appearance, but an adjudication on the merits, so far as the material upon record permitted, that thereby is disclosed an intention to dispose of the suit under Rule 3, Order 71, and accordingly that it must be deemed to have been so disposed of, and not under Order 17, Rule 2. Apart from the abstract of pleadings and the issues, the judgment consists of a single paragraph, in which the learned Subordinate Judge deals with two matters, the failure of the plaintiff to produce his evidence, and the effect of its nonproduction viz., that he must find the issues against him and dismiss the suit. Though the Subordinate Judge does not state expressly under which rule of Order 17 he acts, it may be conceded that the language he uses is more compatible with the terms of Rule 3 than of Rule 2. That circumstance does not, however, necessarily conclude the matter, and the right; course may be to look rather to the circumstances in which a judgment of dismissal was passed than to its form in order to decide under which of the two rules it should be held to fall, adopting the view of the majority of the learned Judges in the Full Bench case, Pitchamma v. Sreeramulu [1918] 41 Mad. 286, that the two-rules are mutully exclusive. In view, however, of the conclusion I have reached upon the other aspect of the case, that if dismissal was justified, the appropriate rule under which to pass the order was. Rule 3, O.17, it is not necessary to discuss this point further.
20. We have been referred to a number of cases bearing upon the question of the appearance or the nonappearance of a party, and I think that the conclusions to be drawn from them are these. When the party is represented by a pleader, the test of the party’s “appearance” whether he be present in person or not, is whether the pleader is in possession of full instructions to conduct the case, so far as it can be conducted at that hearing, and if so, whether he acts upon these instructions and does not either withdraw or demonstrate in some other manner his unwillingness to proceed further. If he does withdraw either expressly or constructively or report no instructions, or otherwise ceases fully to represent his client, it makes no difference that the client may himself be present, unless it is clear that he assumes charge of his own case; because it may be assumed that a party who employs a pleader is not himself prepared, upon the pleader’s withdrawal to undertake his functions. Thus it was held by a Full Bench of the Calcutta High Court in Sottish Chandra-Mukerjee v. Ahara Prasad Mukerjee [1907] 34 Cal. 403, that an application by a pleader, who is instructed only to apply for an adjournment, is not an “appearance,” because he does not represent his client in the sense that he has been duly instructed and is able to answer all material questions relating to the suit. Order 6, Rule 1, Sub-clause (2). Where, however, as here, it is not contended that the pleader was instructed only for this specific purpose, but it appears that up to some stage of the hearing, at least, he fully represented his client, it must be shown that he did or omitted to do something which negatives the ordinary inference that he continued so to represent him. In Gopala Row v. Maria Susaya Pillai [1907] Mad. 274, the pleader applied for an adjournment, which was refused. Thereupon he stated that he was unwilling to proceed, and the suit was dismissed. It was held that the plaintiff failed to appear as from the time when his pleader declined to proceed. Similarly in Mahant Damodar Das v. Raj Kumar Das A.I.R. 1922 Pat. 485, the defendants’ pleader asked for an adjournment and when it was refused stated that he had no instructions to cross-examine the plaintiff.
21. It may be noted that the plaintiff was examined on the first day of trial (11th) from which I infer that the pleader abstained from doing something on that day which he might have done; and on this ground, alone, I would distinguish the circumstances of that case from the present one, though of course it was permissible to infer even from the pleader’s attitude subsequent to the 11th that his presence did not amount to an appearance. The learned Judges observed:
The pleader took no part in the trial on either day, and the defendant who was apparently present on one of the days, was not there for the purpose of conducting his case.
22. Even in the Patna case, Sheikh Muhammad Bakar Ali v. Chulhail Mahto [1919] 4 Pat. L.J. 712, in which the inference of nonappearance seems to have been based upon somewhat slender grounds, the Court was able to say that there were indications that the pleader had not been duly instructed. It need not be added that there is ample authority for the position that where a pleader reports no instructions, the result is the non-appearance of his client, and this is so, generally speaking, whether the client is physically present or not: see the Madras Full Bench case Manickam Pillai v. Bathummal A.I.R. 1925 Mad. 21, Arunachalam Goundan v. Katha Goundan 47 M.L.J. 514 and Kaliappa Mudaliar v. Kumaraswami Mudaliar A.I.R. 1926 Mad. 971.
23. It appears to me that the essential features of these oases is not that the part taken by the pleader was limited to :an unsuccessful application for an adjournment, because it is difficult to see why that in itself should be construed as a default in appearance; but that the pleader by his conduct after the adjournment had been refused, disassociated him-self from the proceedings. We have been referred to no case, I think, where the inference of nonappearance was not based upon some conduct of this character, and indeed, if the pleader does as much for his client as the circumstances allow, how can it be said that he ceases to represent him? So far as appears, that was what happened here The onus lay upon the plaintiff and the case could not proceed until his witnesses appeared, so that, in their absence, there was nothing to be done but to apply for an adjournment. When that was refused, there was nothing more to be done, whatever, and the plaintiff and his pleader had to suffer judgment to be pronounced. If in these circumstances, with the pleader and the party both present, there was a “nonappearance,” what course of action was open to them in order to convert it into an “appearance”?
24. I am forced to conclude, therefore, that the suit must be deemed to have been disposed of under Order 17, Rule 3, and that upon this ground, the order of the Subordinate Judge against which this civil miscellaneous appeal is preferred should be confirmed and the appeal dismissed with costs. I have reached this conclusion with much regret in the present case, not only because in so doing I have to differ from my learned brother but also because I consider that the adjournment was refused, and the suit summarily; dismissed upon wholly insufficient grounds.
25. As we differ in our opinion, under Section 98, Clause (2), Civil P.C., the appeal is dismissed with costs.
