Patra, J.:— This is an appeal against an order of the Subordinate Judge, Sundergarh, rejecting an application under Order 9, Rule 9 of the CPC filed by the appellant to set aside the order dated 23-3-1966 dismissing M.S No. 38 of 1964 on the file of that Court for default. That suit was posted for trial to 21-3-1966. Both parties applied for time in the first Instance but later on the defendant filed Hazira. The suit was adjourned to the next day for trial. On the 22nd, the plaintiff again applied for time. It being rejected the plaintiff filed Hazira and the suit was taken up for trial. P.W 1 was examined and cross-examined in part as there was no time to finish it. The suit was adjourned to the next day for further hearing and the witnesses in attendance were directed to reappear on the next day. Obviously because the next day did not suit the plaintiff, his Advocate filed an application for adjournment till 24-3-1966 but the application was rejected. On the next day, that is 23-3-1966, defendant No. 1 filed Hazira and the plaintiffs advocate filed an application to adjourn the suit for a month to enable him to get the suit transferred from the file of that Court. That application was rejected and thereafter the plaintiffs advocate reported that he had no further instructions. The learned Subordinate Judge then passed an order that “the suit is dismissed with costs for default and further prosecution.”
2. The plaintiff thereafter filed an application under O. 9. R. 9 of the CPC for setting aside the order dismissing the suit for default in that application he had stated the circumstances under which the witness for the plaintiff examined in part on 22-3-1966 was unable to be present in Court on the next day and also the circumstances under which the other witnesses whose evidence was necessary to establish the plaintiff's case could not also attend Court. The defendant-opposite party in that case denied all these allegations and stated that the plaintiff had no reasonable cause to be absent from Court on 23rd. It was also contended that the suit having been disposed of under O. 17, R. 3 of the CPC, Order 9 had no application and that therefore, the application filed by the plaintiff under O. 9, R. 9 of the CPC was not maintainable. After examining three witnesses on the petitioner's side and the defendant-opposite party, the learned Subordinate Judge dismissed the application. Hence this appeal by the plaintiff. At the outset Mr. S. Mohanti appearing for the respondent urged that the suit having been disposed of under O. 17, R. 3 of the CPC and having been decided on merits, the only remedy which was available to the plaintiffs was to file an appeal and consequently the application under O. 9, R. 9 of the CPC was not maintainable irrespective of the merits of the petition. This, therefore, leads us to a consideration of the question whether the disposal of the suit was in fact under Rule 3 of Order 17 of the CPC as contended by the respondents or whether the disposal was under Rule 2, as contended on the appellant's side. The other questions that arise for determination of the controversy are whether in the circumstances stated above. Rule 3 is at all applicable. Rules 2 and 3 of Order 17 of the CPC may be quoted.
“2. Procedure if parties fail to appear on day fixed 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 9 or make such other order as it thinks fit.
3. Court may proceed notwithstanding either party fails to produce evidence etc.—Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the 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.”
3. Rule 2 provides that on the failure of any or both of the parties to appear on the adjourned date of hearing two alternative courses are open to the Court. The first is to dismiss the suit for default if the plaintiff is absent or to decree the suit ex parte in case of absence of the defendant. The second course is instead of following any of the above courses contemplated by Order 9, the Court may pass such other order as it thinks fit. Such other order would ordinarily be to adjourn the suit, although the view of some of the High Courts is that where the plaintiff has made out a case which, if uncontradicted, would entitle him to a decree, but does not appear on the date of adjourned hearing, the Court should not dismiss the suit under O. 9, R. 8 of the CPC but decide the suit on merits, the reason given being that Order 9. Rule 9 does not apply in such circumstances. There appears to us to be no justification for taking such an extreme view that if there are materials on record on the basis of which a decree can be passed either way, O. 9 of the CPC would have no application. The language of the Rule (R. 2) itself shows that the Court has got a discretion in the matter which must necessarily be exercised judicially.
4. Rule 3 of Order 17 of the CPC does not appear to deal with a case of failure of any or both of the parties to appear in the Court on the date of adjournment as does Rule 2. That rule contemplates a case where any party of a suit to whom time has been granted either to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, appears on the adjourned date of hearing but fails to perform any of the acts for which time had been allowed to him. Thus notwithstanding such failure or default, the Court may proceed to decide the suit forthwith. The ‘default referred to in this rule is thus not one of non-appearance of one of the parties but of non-compliance with the various steps for the progress of the suit for which time has been granted to him. To such a case, Rule 2 can have no application and, if, as provided in Rule 3, the Court in such circumstance, proceeds to decide the suit forthwith, it would be a decision on merits to which Order 9 has no application. Therefore, in order that the case would come under Rule 3, three conditions are necessary (1) time must have been granted to a party to take all or any of the steps mentioned therein for the progress of the suit; (2) there must have been a default in taking such steps; and (3) the party concerned should have appeared in Court.
5. Can it be said in the present case, that time has been granted to the plaintiff till 23-3-1966 for producing his evidence? As already stated, when the suit was taken up for trial on 22-3-1966, the plaintiff applied for time but the application having been rejected, he got ready and his first witness was examined in part. The following is the order that the Court recorded that day:
“The suit is taken up. P.W I, Sri P.B Kanungo is examined and cross-examined in part. Marked Exts. 1 to 20 and A & B. No time, call on 23-3-1966 for further hearing. The witnesses in attendance are directed to reappear on the date fixed. Put up the petitions (the petitions relate to other matters not relevant for the purpose of the present application) tomorrow.”
“Later on, the plaintiff's Advocate files a petition for adjournment of the suit till 24-3-1966 on the grounds stated therein. Copy not served. This petition is rejected.”
6. It would thus appear that it is not on the request of the plaintiff that the suit was adjourned to 23-3-1966, but, on the other hand, the order recorded by the Court goes to show that the suit was posted to 23rd in spite of the plaintiffs request not to do so. We are, therefore, of the view that the first condition to attract the applicability of Rule 3 is absent in this case.
7. The view that we take receives support from a Bench decision of the Allahabad High Court in Juggi Lal Kamla Pat v. Ram Janld Gupta, AIR 1962 All 407. In that case, a suit was fixed for final hearing to 23-5-1956. On the 22nd, an application was filed on behalf of the plaintiff for adjournment on the ground that the plaintiffs senior Counsel had gone to England and that his presence was necessary for the proper prosecution of the case. The defendant's Counsel made an endorsement on the said application to the effect that he had no objection to the adjournment. But the Court rejected the application on the 23rd, on the ground that it was not properly presented. A second application for adjournment was filed in Court on behalf of the plaintiff that day and it was ordered to be put up for disposal on the 24th to which day the suit was also adjourned for hearing. On the 24th, the plaintiffs Counsel reported that he had no further instruction in the matter. The suit was then dismissed for default of the plaintiff. An application for restoration of the suit having been filed on behalf of the plaintiff, it was contended that the suit was disposed of under Order 17. Rule 3 and that as such. Order 9 has no application. Rejecting this contention, the Court held that it cannot be said that “time was granted” at the instance of the plaintiff to do any act on 24-5-1956. The plaintiff had asked for a long adjournment on the ground that his senior Counsel was absent in England. He had not applied to the Court for time to produce his evidence or to do any other act necessary to the further progress of the suit. The Court had suo motu adjourned the hearing of the application to the 24th May, 1956, and had without any request on the part of the parties ordered them to produce their evidence on the following day. The learned Judges therefore, held that in the circumstances, the Court could not have acted under O. 17, R. 3 of the CPC and that the order passed by the Court fell under O. 9, R. 8 of the CPC as being one of dismissal for default of appearance of the plaintiff.
8. In the present case, there was no appearance of the plaintiff in Court on 23-3-1966. It may be recalled that on that day, the plaintiff and his witnesses were absent from Court but Mr. K.M Behera, the Advocate appearing for the plaintiff filed an application for granting one month's adjournment to enable the plaintiff to file a transfer application and to get a stay order. When that application was taken up at 11.20 A.M that day, and the learned Advocate was asked to show why such an application should be allowed, he reported that he had no further instructions. The question is whether in spite of this, it can still be said that there was appearance on behalf of the plaintiff in Court that day. It appears to us that it would be inconsistent to hold that an Advocate who had no instructions to proceed with the case still holds the authority to represent his client for the purpose of the case.
9. The word ‘appearance’ has a well-recognised meaning and implies that the party is present at the trial either in person or through a pleader properly authorised on his behalf, and in either case, the party or the person authorised on his behalf must be present for the purpose of conducting the case. The mere physical presence of the party unless he is there for the purpose of conducting the case is not “appearance” as contemplated in the rule nor does the presence of his pleader who had been instructed to appear on previous occasions constitute an appearance, unless he is instructed to represent him on the occasion in question and attends for that purpose.
10. The question as to what constitutes appearance has been discussed fully by G.K Misra, J. (as he then was) in Mulia Maharana v. Narayan Patra, (1966) 32 Cut LT 107 : (AIR 1964 Orissa 246), where his Lordship after reviewing the case law on the subject accepted the following dictum of a Bench of the Calcutta High Court in Sikandar Ali v. Kushal Chandra, AIR 1932 Cal 418 as laying down the correct law on the sub-Sect This is what their Lordships stated:
“The word “appear” 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 O. 9, Rr. 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.”
11. We are in respectful agreement with this view.
12. Mr. S. Mohanti, learned Advocate for the respondents contends that even if it is held in this case that there was no appearance on behalf of the plaintiff, after the plaintiffs' advocate reported no Instructions, still the disposal of the case would be one under Rule 3 of Order 17 and relies in support of this contention on Full Bench decision of the Rajasthan High Court in Gopi Kisan v. Ramu, (AIR 1964 Raj 147). In that case, their Lordships held that where time is granted to the plaintiff to prove his claim for money under a deed of agreement the execution of which is denied by the defendant and the plaintiff fails to produce evidence and also fails to appear before the Court on such adjourned date, the Court does not act with material irregularity in dismissing the suit under Order 17, Rule 3 instead of adjourning the case under Rule 2 of that Order. Their Lordships further held that when a party to whom time has been granted for the production of evidence or for the performance of any other act also does not appear, it is a case of double default and the double default does not take away the case from the purview of Order 17, Rule 3.
13. That such a double default takes away the case from the purview of Rule 3 is the consistent view of the Madras High Court expressed as long ago as in 1918 by a Division (Full?) Bench of that Court in Pichamma v. Sreeramulu, (AIR 1918 Mad 143 (2) (FB)), where their Lordships held that Rules 2 and 3 of O. 17 are independent and mutually exclusive and where the conditions of Rule 2 are fulfilled, even if the circumstances envisaged by Rule 3 are existent and applicable, R. 2 should be applied. The reasons which persuaded the learned Judges to take this view are that when a party has failed both to appear as well as to produce evidence or to perform an act for which time was granted to it would be unjust in the party's absence to assume that its failure to produce evidence or to perform the act was unjustified he being absent and therefore unable to offer any explanation for its failure to produce evidence or to do acts in furtherance of the progress of the suit.
14. This view of the Madras High Court was followed by a Full Bench of the Andhra Pradesh High Court in Agaiah v. Mohd. Abdul Kareem, (AIR 1961 Andh Pra 201). The Rajasthan High Court in Full Bench case referred to above considered and dissented from the views of the Madras and Andhra Pradesh High Courts, that in the event of a double default it takes away the case from the purview of Order 17, Rule 3. That Court, however, laid down that even in such a case the Court is not bound to proceed under Rule 3 (sic) but it has not (sic) a discretion either to proceed under Rule 3 or under Rule 2 — a discretion which should be applied with circumspect caution and judicial restraint for the purpose of the present case, however, it is not necessary for us to express our preference either for the one or the other of the two conflicting views referred to above, because, even if the Rajasthan view is accepted, that case is distinguishable on facts.
15. In the Rajasthan case, the suit was fixed for plaintiff's evidence on 19th September, 1957, on which date the plaintiff obtained an adjournment on payment of costs and the case was fixed for 19th October, 1957 on which date of hearing, the counsel for the parties were present, but the plaintiff and his witnesses were absent. The plaintiff's pleader reported no instructions. Cost was not paid. Plaintiff's evidence was closed. Defendants led no evidence and the arguments of their counsel were heard and the suit was dismissed. The Court held that the dismissal of the case was under Order 17, Rule 3 of the CPC, a view which appears to be completely justified having regard to the facts of the case. Not only was time granted till 19th October, 1957 on the request of the plaintiff but the facts also show that the decision was on merits having been arrived at after considering such evidence as was available on record and after hearing the Advocates of the parties.
16. It is already indicated that in the present case, time was not granted till 23rd March, 1966 on the application of the plaintiff, a circumstance which is sufficient to take out the case from the purview of Rule 3. There was no appearance on behalf of the plaintiff after the plaintiff's advocate withdrew from the case on the 23rd, the moment his adjournment application was rejected. There is nothing in the order passed by the learned Subordinate Judge on that day to suggest that he was disposing of the suit on merits or to indicate that in disposing it of he had applied his mind to the facts of the case, the contentions between the parties and the issues that arose for determination. It need hardly be said that there is no reference to Rule 3 of O. 17 in the order which the learned Judge passed. We are, therefore, clearly of opinion that the disposal of the suit was under Order 17. Rule 2 of the CPC and that consequently the application for restoration of the suit filed under Order 9 of the CPC was maintainable.
17. Coming now to the merits of the application filed to set aside the order of dismissal of the suit for default, the essence of the appellant's case is that Mr. P.B Kanungo (P.W 1) who was examined in the suit in part on 22-3-66 could not attend Court on the next day because he had to preside over a Selection Committee appointed by the Hindusthan Steel Limited for selecting nurses and that P.W 2, the Assistant Controller of Accounts under the Hindusthan Steel Ltd. at Rourkela who was to give evidence in the suit could not attend Court because he was suffering from high blood pressure. In support of the illness of P.W 2, the medical certificate (Ext 1) was filed which was admitted in evidence without objection. The assertion made in Court by P.W 1 that on the 23rd he had to and did preside over the Selection Committee has not been controverted by respondent No. 1 who examined himself as O.P.W 1. Regarding the illness of P.W 2 about which he (P.W 2) deposed in Court all that O.P.W 1 has stated is that he cannot say if P.W 2 was ill on 23-3-66.
18. In the circumstances, we see no reason why we should disbelieve the appellant's case that on 23rd, P.W 1 had to and did preside over the Selection Committee and that P.W 2 was suffering from high blood-pressure and had been advised by the doctor not to undertake any journey. The learned Subordinate Judge did not accept the appellant's case relying mainly on certain events that transpired before 23rd. We get it from P.W 3, an assistant of the Pay Department of the Hindusthan Steel Ltd. that on 21-3-1966, he along with Mr. Patnaik and Mr. Tripathy, two other assistants, came to Sundergarh to give evidence for the plaintiff in the suit. As he was not able to identify the signatures in certain Registers filed in Court on the plaintiff's side, the plaintiff's lawyer advised him that his evidence and that of the other two assistants would not be of any help and that he should go back to Rourkela and ask P.Ws 1 and 2 to come to Court the next day. P.W 3 says that he accordingly went and informed P.Ws 1 and 2 but that the latter told him that he was ill and would not be able to go to Sundergarh on the 22nd. It is in these circumstances that P.W 1 alone came to Court on the 22nd and was examined in part. When he found at the close of the day that the suit was adjourned to the next day, that is, 23rd, a request was made to the Court not to post the case to 23rd but to adjourn it to the next day, that is, 24th. This was obviously because P.W 1 knew by that time that he was to preside over the Selection Committee on the 23rd.
19. The very fact that only a day's adjournment was asked for on the 22nd only establishes the bona fides of the adjournment application filed on the plaintiff's side on the evening of 22nd. That in the adjournment application filed on the evening of 22nd it was not specifically mentioned that P.W 1 was to preside over the meeting on the next day and that P.W 2 was ill does not appear to us to be of material consequence. The learned Subordinate Judge observed in those circumstances, that P.W 1 ought to have decided not to preside over the meeting but to attend Court to give evidence and his not doing so amounts to negligence. P.W 1 explains that this could not be done because candidates from all over India had to appear for interview on the 23rd and the meeting therefore could not be postponed. In any event, the decision of P.W 1 to attend the meeting rather than the Court would amount, in our opinion, only to an error of judgment for which the plaintiff should not be penalised. Regarding the absence of P.W 2, we are satisfied that his examination on the plaintiffs side was necessary but that due to his illness it was not possible for him to attend Court on the 23rd. In the circumstances, we feel that it is a fit case in which the application under Order 9 of the CPC should have been allowed.
20. The defendant is at present residing at Lonawala in the district of Poona. He had to attend Court on the 23rd and again he had to examine himself in the misc case. He would have been saved from this trouble and extra expenditure if the trial of the suit had continued on the 23rd and thereafter from day to day till it was closed. In the circumstances, we feel, that the respondent-opposite parties should be adequately compensated.
21. In the result, therefore, we would allow this appeal, set aside the order passed by the learned Subordinate Judge dismissing Misc. Case No. 18 of 1966 on the file of his Court and direct that money suit No. 38 of 1964 on the file of his Court should be restored to file on condition that the appellant pays Rs. 300/- as costs to the respondents within a fortnight from today. The costs should be deposited in the trial Court within the aforesaid period for payment to the respondents. In default of payment, this appeal would stand dismissed with costs. The records of the case should forthwith be sent down to the lower Court.
22. Acharya, J.:— I agree.
23. Appeal allowed.
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