1. Plaintiff is the petitioner. On 9-3-1952 issues were settled and the suit was adjourned for trial to 23-4-1962. On that day the plaintiff and defendant 1 filed haziras; as the Court was engaged in another part-heard suit, this suit was adjourned to 9-7-1962 for trial. On that day defendant 1 was ready and filed hazira; but the plaintiff applied for time. The prayer for adjournment was rejected and the parties were directed to get ready at once. Later, on the same day, the following order was passed:
“The plaintiff neither responds to calls nor takes any steps. The defendant 1 is ready. Hence the suit is dismissed for plaintiffs default in presence of defendant 1.”
2. On 11-7-1962 the plaintiff filed an application under Order 9, Rule 9 of the CPC for setting aside the order dated 9-7-1962. He alleged therein that one of his material witnesses was suffering from fever and the other missed the bus, and so he could not get ready on 9-7-1962. The learned Munsif disbelieved the story and held that there was no sufficient cause for non-appearance. The learned Subordinate Judge came to a different conclusion that the plaintiff had sufficient cause for his non-appearance. Both the Courts below, however, dismissed the plaintiff's application for restoration holding that to this case, where the plaintiff was present in Court in the first instance but did not prosecute the suit when the adjournment application rejected, Order 9, Rule 9 of the CPC has no application. The learned lower appellate Court placed reliance on Kulamoni Barik v. Lokenath Mohapatra, ILR (1949) 1 Cut 446 : (AIR 1949 Orissa 35) and Mayurbhanj Oil and Oil Products Ltd. v. Munilal Ramdayal, ILR (1960) Cut 591, in support of its judgment. Against the appellate order dismissing the application for restoration this Civil Revision has been filed. From the aforesaid statement of facts it is manifest that the suit was dismissed not at the first hearing but on the date of adjourned hearing. Order 5, Rule 5 prescribes that the Court shall determine at the time of issuing the summons, whether if shall be for the settlement of issues only, or for the final disposal of the suit; and the summons shall contain a direction accordingly; provided that, in every suit heard by a Court of Small Causes, the summons shall be for the final disposal the suit. Under Order 5, Rule 8 where the summons is for final disposal of the suit, it shall also direct the defendant to produce, on the day fixed for his appearance, all witnesses upon whose evidence he intends to rely in support of his case. Order 8, Rule 1 states that the defendant may, and if so required by the Court, shall, at or before the first hearing or within such time as the Court may permit, present a written statement in his defense. This rule thus expressly refers to ‘the first hearing’. The heading of Order 9 is “Appearance of Parties and Consequence of Non-appearance”. Thus it is clear that “first hearing” is clearly for the settlement of issue or for final hearing. It means the day on which the Court goes inti pleadings in order to understand the contention of the; parties. If it is only for settlement of issues, the Court cannot pass an ex parte decree on that day under O. 15, Rule 3(1) Proviso which lays down that where the parties are at issue on some question of law or of fact, and issues have been framed by the Court as hereinbefore provided, if the Court is satisfied that no further argument or evidence than the parties can at once adduce is required upon such of the issues as may be sufficient for the: decision of the suit, and that no injustice will result from proceeding with the suit forthwith the court may proceed to determine such issues, and, if the finding thereon is sufficient for the decision, may pronounce judgment accordingly, whether the summons had been issued for the settlement of issues only or for the final disposal of the suit: Provided that, where the summons has been issue for the settlement of issues only, the parties or their pleaders are present and none of them objects.
3. That this is the concept of ‘first hearing’ is no longer in controversy — Sangram Singh v. 1. Election Tribunal, Kotah, (S) AIR 1955 SC 425. Thus 9-7-1962 was not the date of the ‘first hearing’ of the suit.
4. 9-7-1962 was the date of ‘adjourned’ hearing.’ Order 9 has application to case of non-appearance at the first hearing while Order 17, Rule 2 deals with cases of failure to appear at the adjourned hearing of the suit Order 17 is headed ‘Adjournments’. Under Rule 1(1) of that Order, the Court may, if sufficent cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit. Rule 2 of that Order lays down that where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. The crucial words in the Rule are “fail to appear”. On the failure of any or both of the parties to appear on the adjourned date of hearing, two courses are open to the Court — either to dispose of the suit in one of the modes prescribed under Order 9, or to make such orders as it thinks fit. It is to be emphasised that Order 9 has application to adjourned hearing not proprivigore but by virtue of the statutory provisions under Order 17, Rule 2. If the Court chooses to apply the provisions of Order 9, then either an application for restoration must lie under Order 9, Rule 9, or an application for setting aside an ex parte decree under Order 9, Rule 13. The Court is, however, not bound to apply the provisions of Order 9, but may make such order as it thinks fit.
5. There is some conflict of authority as to the meaning of the expression “such other order as it thinks fit”. The view of majority of the High Courts appears to be that the Rule conceives of powers of the Court to give a decision on the merits in certain circumstances, namely, where there are materials on record on the face of which a decision can be given — Tulsiram Bhagwandas v. Sitaram Srigopal, AIR 1959 Cal 389 and Basalingappa Kushappa v. Shidramappa, AIR 1943 Bom 321. For instance, evidence is taken in a case on some dates whereafter the suit is adjourned by the Court. In such a contingency, there would be some material in the face of which the Court can give 3 decision on merits. The clause also conceives of the power of adjourning a case without either disposing it of in accordance with Order 9 or without giving a decision on merits.
6. Order 17, Rule 3 enacts that where any party to a suit whom time has been granted fails to produce his evidence, or to cause attendance of his witnesses or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith. The ambit of this Rule is that if a party is present in court, but fails to fulfil the requirements prescribed in the Rule for which time has been granted, the court would proceed to decide the suit forthwith. Emphasis is to be laid on the words “notwithstanding such default”. The default referred to is not one of non-appearance of the party but is one of non-compliance with the various steps taken for the progress of the suit for which time has been granted. If the case comes within the ambit of Rule 3, the provision of Order 9 has no application and the court is to decide the suit forthwith on merits.
7. This case does not come within the ambit of Order 17, Rule, 3. On 23-4-1962 the suit was adjourned to 9-7-1962 because the court was busy in a part-heard case. Time had not been granted to the plaintiff to produce his evidence or to cause the attendance of his witnesses or to perform any other act necessary for the further progress of the suit. In terms, therefore, Order 17, Rule 3 has no application and the order dismissing the suit on 9-7-1962 is not a decision on merit. In fact the learned Munsif exercised discretion in passing an order in terms of Order 9, Rule, 8 which says that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed.
8. In substance, the view of both the Courts below is that Order 17, Rule 2 has no application to this case, though they have not expressly stated so. In other words, though the plaintiff did not take part in the hearing of the suit and desisted from appearing in court after the adjournment petition was rejected, the absence of the plaintiff has been construed to be “appearance”, and as O. 17, Rule 2 does not apply unless the party had failed to appear at the hearing, they held that Order 9, Rule 9 had no application. In the judgment of the learned Courts below, there is no reference at all to Order 17. The sora of their argument is that the voluntary retirement from the suit by the plaintiff after the rejection of the adjoumment petition comes within the meaning of “appearance”. This necessitates an examination of the meaning of the word “appearance” used in various Rules.
9. The word “appearance” has nowhere been defined in the Code. Order 3, Rule 1 prescribes that any appearance, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent, or by a pleader. Order 5, Rule 1, sub-rule (2) says that a defendant to whom summons has been issued under sub-rule (1) may appear in person, or by a pleader duly instructed and able to answer all material questions relating to the suit, or by a pleader accompanied by some person able to answer all such questions. Order 5, Rule 3 lays down that where the Court sees reason to require the personal appearance of the defendant, the summons shall order him to appear in person in Court on the day therein specified, and where the court sees reason to require the personal appearance of the plaintiff on the same day, it shall make an order for such appearance. It may be clarified that, in this case, no order was made requiring the personal appearance of the plaintiff.
10. As to the meaning of the word “appearance” there is some conflict of authority. But the matter was considered by a Full Bench of five Judges of the Calcutta High Court in Satis Chandra v. Apara Prasad, ILR 34 Cal 403 (F.B). Sir Ashutosh Mukherji's view in the referring judgment may be quoted—
“The term “appearance” is nowhere defined in the Code and, as pointed out by Benson, J. has several significations, the word must always be understood in reference to the particular subject-matter to which it relates, and the purpose or end to be answered by the appearance has an important bearing in determining what is sufficient to constitute appearance in a particular case. It seems to me that having regard to the scope of Section 556 of the CPC, and the object to be gained by the attendance or appearance of the appellant on the day fixed for the hearing of the appeal, the mere appearance of counsel to make an application for adjournment Tight not to be treated as appearance so as to oust the jurisdiction of the Court to make an order for readmission under Section 558 of the CPC, if proper cause is shown. Upon refusal of the application for adjournment, if counsel declines to go on with the case, there is at that time no appearance on behalf of the party. I do not feel much pressed by the reference made to the case in which evidence may have been taken and which has beers partially argued.”
11. This observation was made in a case in which the appeal had been dismissed. But it is agreed on all hands that there is no difference in principle in its application to suits and appeals. The aforesaid observation was accepted by the Full Bench unanimously as laying down the correct law. It is worthwhile quoting the observation of Harrington J., which succinctly brings out the meaning:
“I do not see how a pleader can be said to attend the hearing, merely because, before the hearing begins, he comes and asks the Court that there may be no hearing. The hearing does not begin till his application is disposed of.”
12. In Marian Nissa v. Ramkalpa Gorain, ILR 34 Cal 235, at an adjourned hearing of a suit, the witnesses on behalf of the plaintiff not being in attendance, the plaintiff applied for issue of warrant against one of them. The Court refused the application and the pleader for the plaintiff thereupon intimated that he had no further instructions to appear; and the suit was dismissed. Subsequently an application was made under Section 103 of the CPC (corresponding to order 9, R. 9) to set aside the order of dismissal. On objection by the defendant that, inasmuch as the dismissal was under Section 158, (Order 17, Rule 3,) the remedy of the plaintiff was by way of an application for review. Their Lordships held that the suit was dismissed under Section 102 (Order 9, Rule 8) read with Section 157 (Order 17, Rule 2), and that the application was maintainable under Section 103 (Order 9, Rule 9) of the CPC. Sir Ashutosh Mukherji was also a party to this decision. With respect I must say that it lays down the correct law. In the Calcutta High Court, there has been no departure from this view.
13. In Sikandar Ali v. Kushal Chandra, AIR 1932 Cal 418, a Division Bench of that Court held:
“But so far as this High Court is concerned and the same view has been adopted in Madras and Patna High Court, it is settled that where a counsel appears on behalf of a party and presents an application for adjournment, which being refused, he retires from the case, the parties should be taken as not having appeared in the suit.”
14. A thorough discussion was made in that case as to what appearance means. Their Lordships observed:
‘The word ‘appearance’ in this Rule (O. 9, R. 8) apparently means appearing in the suit. A party may be present in the precincts of the Court or he may be found present in the Court room. But if he does not take part in the suit, it cannot be said that he has appeared. This is what is meant by Order 9, Rules 6 and 8. If a plaintiff comes to Court and files an application for adjournment and when the application is refused, he retires from the suit, though he may not have physically retired from the Court, he is not to be considered any longer to be present in the suit and any order passed in such circumstances must be taken to be an order passed ex parte.”
15. This decision gives the correct and clear exposition of law. In (S) AIR 1955 SC 425, the meaning of the word “ex parte” has been analysed as “in the absence of a party”. So when a party appearing through a pleader, or himself withdraws from the suit after the adjournment application is refused, he cannot, however, be said to have appeared in the suit. That the distinction between the withdrawals by a party or by a pleader has no difference is clearly stated in Gopal Row v. Maria Soosaiya, ILR 30 Mad 274, wherein their Lordships said:
“It seems to me the plaintiff failed to appear as from the time when his pleader declined to proceed with the case. On behalf of the appellant it was suggested that the plaintiff was present in Court when his pleader declined to proceed. Even if it were so, this, in my view, makes no difference. 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 when he declined to proceed, it follows that the party also failed to appear.”
16. In this case the plaintiff appeared through a pleader. But as I have already said, the plaintiff withdrew from the suit after the rejection of the adjournment application. It hardly makes any difference whether he appeared in person or through a pleader.
17. The Bench decision of this Court in ILR (1949) 1 Cut 446 : (AIR 1949 Orissa 35), (Ray, C.J and Panigrahi, J.) is in line with the aforesaid view. The teamed Chief Justice ruled that appearance in certain circumstances must mean readiness to go on with the suit, but not always and that so long as a party performs any act necessary for the progress of the suit, he does appear in the suit and that to move for an adjournment is nonetheless necessary for the progress of the suit in the sense that not to do anything amounts to non-appearance. The Bench decision lays down the correct law. Unfortunately the learned lower appellate Court misunderstood this decision and construed it as laying down the universal proposition that whenever an adjournment application is filed by a party, he Trust be taken to have appeared in the suit. The decision does not lay down such a proposition. In that particular case, the defendants had filed an adjournment application. Without considering whether it would be allowed or rejected, the plaintiff's suit was dismissed. The point for decision, was whether there was appearance of the defendants. In that particular case, their Lordships held that there was appearance. This conclusion was based on the analysis that until the petition for time was rejected, the defendants could not put in their appearance only by asking for time by an adjournment application. But it would he clear from, the judgment itself that if the court had dismissed the application for time filed by the defendants, and thereafter the defendants did not evince their readiness to prosecute the suit before the dismissal of the plaintiff's suit it would have amounted to non-appearance. The learned lower appellate Court missed the point and wrongly placed reliance on it in support of its conclusion.
18. The learned lower appellate Court rejected the application for restoration placing strong reliance on single Judge decision of this Court in ILR (1960) Cut 591. Strictly speaking this decision is not an authority as to the meaning of ‘appearance’ as discussed by me. Neither it is an authority on the principles governing Order 17, Rules 2 and 3. The facts of this case are that one S.N Bhaduri, who was one of the managing agent of the appellant Company, was looking after the suit on behalf of the Company. On the application for time by both the parties on the previous date, the suit had been adjourned to 26-11-1956. On that day an adjournment application was filed explaining the circumstances why the defendant Company had not been able to make arrangement for summoning the witnesses. The petition for time was rejected. Defendant's lawyer endorsed no instruction and Sri S.N Bhaduri did not appear and an ex parte decree was passed. In an application for setting aside the ex parte decree under Order 9, R. 13 of the CPC, his Lordship rejected the application with the following observations:
“If the Court did not grant an adjournment on that score, the defendant could take no attitude of non-co-operation with the Court. If the defendant's petition for adjournment had been wrongly rejected, that could not give him a right to dissociate with the Court, and the defendant could seek proper relief in the appellate Court on the ground that reasonable opportunity had been denied to him to adduce evidence. What Order 9, R. 13 of the CPC, stipulates is that the defendant must have sufficient-cause having prevented him from appearance, x x x x in any case, voluntary retirement from a suit by the defendant after his adjournment petition was rejected by the Court cannot equate to a sufficient cause as preventing the defendant from appearing in Court.”
19. With respect I am unable to agree with this proposition stated so broadly. The hub of the administration of justice is not the Court but the party. The Court is merely a machinery. Mere presence of a party most often would not conduce to or subserve the interest of the party in establishing his case. Occasions do arise when a party having a right cause in his favour, due to justifying and unforeseen circumstances, is not able to collect the necessary materials and evidence in support of his case. Without being so armed, if the party enters into the arena of contest, he would merely satisfy the formalities of a trial but would not be able to get justice in support of his righteous cause. It is for these reasons various provisions in Order 9 of the CPC have been prescribed to give full opportunity to a party to contest the case when his non-appearance is for sufficient cause. In the face of statutory provisions, Courts cannot prescribe an invariable rule that in all cases where the party is present in court without evidence, he must contest the suit to maintain co-operation with the court. A party cannot be penalised for non-co-operation with the Court. In fact the statutory provisions do not use the expression “co-operation with Court”. If in certain circumstances the party, though present in court, chooses not to appear after the adjournment petition is rejected, it is not on account of a desire to have non-co-operation with the Court, but only with the paramount consideration of contesting the litigation not in a half-hearted manner which would generally culminate in frustration of justice so far as the party is concerned.
20. The real consideration in such a case is not whether the party non-co-operated with the Court, or made voluntary retirement, but whether the non-appearance of the party, after the rejection of the petition for time, was sufficient cause. The answer to such a question will vary according to the facts and circumstances of each case. In a particular case, such voluntary retirement or withdrawal may amount to absence of sufficient cause if the party fails to satisfy the Court after witnesses are examined in a proceeding under Order 9, Rule 9 or 13 of the CPC. This is, however, different from laying down a universal rule that in all such cases, the party must approach the appellate court with a prayer that the principals of natural justice were violated as sufficient opportunity was not given. That contention can be urged either in a proceeding under O. 9, Rule 9 or 13, or by way of an appeal against the ??? Both the courses are open. Non-user of one course cannot negative the exercise of the alternate course sanctioned by law. The observation in ILR (1960) Cut 591, must therefore be confined to its own facts. His Lordship came to the conclusion that all through Sri S.N Bhaduri was the only witness appearing for the defendant and his withdrawal was not based on sufficient cause. In that case reliance was placed on K.B Dutt v. Shamsuddin Shah, AIR 1930 Cal 488. The observation of Sir George Rankin, C.J, does not go so far as to support his Lordship's conclusion, and it could not also be intended in view of the series of Calcutta decisions I have referred to. In the last paragraph, Rankin, C.J observed:
“I say nothing now about the exact meaning of the word ‘appearing’—
ILR (1960) Cut 591, should not therefore be construed as laying down a general rule that in all cases where the plaintiff or the defendant, though present in Court, retires after, adjournment application is rejected, the retirement must amount to appearance in Court and the provisions of O. 9 have no application to such a case. His Lordship himself did not lay down such a rule and only examined if there was sufficient cause for the withdrawal. If, however, this decision lays down any such broad proposition, it is contrary to the Bench decision of this Court in ILR (1949) 1 Cut 446 : (AIR 1949 Orissa 35) and cannot be followed, and it is not necessary to make a reference to a Division Bench.
21. In summing up I am clearly of opinion that O. 17, Rule 2 of the CPC, applies to this case and that the petition under Order 9, Rule 9 of the CPC, is maintainable. In view of the finding of the learned lower appellate Court that there was sufficient cause for the plaintiff's non-appearance, the application for restoration must succeed. In the result the judgments of the Courts below are set aside and the Civil Revision is allowed. As there is no appearance for the other side, there will be no order as to costs.
HH/D.H.Z
22. Revision allowed.