Ramaswami, J.:— This appeal is presented against the order of the District Judge of Shahabad refusing to restore an appeal which had been dismissed for default.

The plaintiffs had brought a suit for redemption of a rehan bond alleging that they had deposited the amount in court under section 83 of the Transfer of Property Act and had also caused a notice thereof served upon the defendant. In spite of the service of the notice the defendant refused to give possession of the land and the plaintiffs, therefore claimed mesne profits for the period subsequent to the date of the deposit of the rehan money. The defendant contested the suit on the ground that the plaintiffs had no right to redeem. The trial court granted a decree for redemption but rejected the claim for mesne profits on the ground that there was no evidence adduced to prove that plaintiffs had made the deposit on the alleged date. Against this decree the defendant filed an appeal. The plaintiffs filed a cross-objection with respect to the claim for mesne profits which had been disallowed by the trial court.

The learned Judge fixed 16th September 1947 for hearing the appeal. On that date Counsel for the appellant stated that his client reached. Arrah at 11 a.m and so he was not ready to argue the appeal Learned Counsel asked for a short adjournment but the court rejected the petition and also dismissed the appeal for default of the appellant. The court heard the cross-objection of the respondents ex parte and granted him a decree for mesne profits which should be ascertained in future proceedings.

The defendant then applied under order 41 rule 19 for rehearing the appeal. The learned District Judge rejected this application on the ground that nr sufficient cause was shown for the non-appearance of the appellant on the date fixed for hearing.

On behalf of the respondents a preliminary objection is raised that this appeal is incompetent since the learned District Judge had not dismissed the appeal for default and order 41 rule 19 was therefore not applicable. It was pointed out on the respondents' behalf that both the appellant and his Counsel were present in court and after the petition for adjournment had been rejected the Counsel for the appellant I withdrew on the ground that he was not ready to argue the case. In support of his argument learned Counsel cited Mathura Das v. Narain Das(1) and Mowar Raghubar Singh v. Gouri Charan Singh(2). In the Allahabad case A.I.R 1940 Allahabad 248 there is no doubt an observation that in the case of an appearance by an appellant who was not preparer to argue the appeal order 41 rule 17 would not be applicable. But this authority is inconsistent with the current of decisions of the Patna, Calcutta and Madras High Courts as will be presently shown. In A.I.R 1918 Patna 259 the question to be decided was whether a compromise petition according to which the parties had agreed that the suit should be dismissed could be set aside by an application under order 9 rule 9. It should be added that according to the terms of the compromise petition the Subordinate Judge had dismissed the suit and the plaintiffs alleging that by practice of fraud their thumbmarks were taken on the compromise petition had applied for setting aside the order of dismissal. A Bench of this Court held that neither the compromise petition nor the order of dismissal in accordance with the terms incorporated therein could be set aside or reviewed in accordance with the procedure laid down in order 9 rule 9. Obviously the material facts in the present case are different. On the other hand in Lalji Sahu…Plaintiff Applicant; v. Lachmi Narain Singh…Opposite Party.(3) it was held that the presence of the plaintiff in court was not an appearance within the meaning of order 9 rule 8 if the pleader of the plaintiff was absent. In Shaikh Muhammad Bakar Ali v. Chulhai Mahto the defendant was ready on the date to which the suit had been adjourned but the plaintiff's pleader appeared and stated that he was unable to adduce any evidence and it was ordered that the suit be dismissed for default of the plaintiff. Upon these facts the learned Judges held that the dismissal was dismissal under order 17 rule 2 and not under rule 3, and therefore, no appeal lay from the order. In order that, there may be an appearance within the meaning of order 9 or order 17 by a pleader the pleader must be duly instructed and able to answer all material questions. If a party to a suit is represented by a pleader the presence of such party in court would not constitute an appearance. In Mahant Damodar Das v. Rajkumar Das the facts are almost parallel with the present case. In that case the defendant was personally present at the hearing but the pleader took no part in the trial saw to ask for air adjournment which was reed. Thereafter the court after hearing the plaintiff's evidence and arguments decreed the suit. Dawson Miller, C.J held that the decree was ex parte and was liable to be set aside for sufficient cause under order 9 rule 13. The eminent Judge observed, that the mere presence of party in court unless he is there for the purpose of conducting his case, is not an appearance within the meaning of the Code of Civil Procedure: nor does the presence of his pleader who has been instructed to represent him on previous occasions constitute an appearance unless he is instructed to represent him on the occasion in question and attends for that purpose.

The cursus curae of the Patna High Court is consistent with Gopala Row Gadai Row Saheb v. Maria Susaya Pillai in which the plaintiff's pleader appeared on the date on which the suit was posted for hearing. He applied for adjournment which was refused by the court. The pleader declined to proceed with the suit and the plaintiff who was present in court took no steps. Thereupon the suit was dismissed. It was held in these circumstances that the dismissal of the suit was a dismissal for default and that the plaintiff could apply for restoration of the suit. The High Court observed that a plaintiff “fails to appear” within the meaning of section 102 (of the old Code) when his pleader declines to proceed with the suit and it made no difference that the party was present in court. A similar view was taken by a Full Bench of the Calcutta High Court in Satish Chandra Mukerjee v. Ahara Pd. Mukerjee.

It should be stated that a similar rule has been adopted in English courts. In Robinson v. Chadwick the plaintiff did not appear in person, but counsel appeared on his behalf and asked for an adjournment; the application was refused; thereupon counsel for the plaintiff declined to proceed. Mr. Justice Fry held that he could only deal with the case as if the plaintiff had not appeared at the trial, as indeed, in substance, he had not; and the learned Judge made an order for dismissal under rule 19 of order 36 of the old Supreme Court Rules.

For these reasons I hold that the appeal is competent under order 41 rule 19 and the preliminary objection taken on behalf of the respondents must fail.

For the appellant it was contended that sufficient cause had been shown for restoring the appeal. It was pointed out that the cross objection was admitted on 26th June 1947 and the appeal was adjourned to 21st August 1947 for hearing on this, date the court was engaged in sessions and so the hearing was adjourned to 16th September 1947. For the appellant evidence was given that he missed railway train on the previous date and the morning train by which he reached Arrah on 16th September 1947 was three hours late. The appellant met his pleader at about 12 noon. As the appeal was called on for hearing soon after, it was argued for the appellant, that the pleader was not ready to argue the appeal. The learned District Judge has not specifically disbelieved the plea of the appellant that the morning train was late. If this part of the case be true it is obvious that the appellant cannot be held responsible for the delay in reaching, the court for giving instructions to his pleader. There may be some amount of negligence on the appellant's part for having missed the train on the previous date. But upon the whole I consider that sufficient cause has been made out by the appellant for restoration of the appeal.

For the respondents however an important objection is raised that no appeal had been preferred, by the appellant from the order of the learned District Judge allowing the cross-objection with respect to the mesne profits. It was contended for the respondents that in the absence of such an appeal the order of the District Judge granting mesne profits has become final and cannot be interfered with by the High Court. Learned Counsel relied upon Hira Nand v. Mahbub Elahi. In that case the District Judge had dismissed an appeal for default and had allowed cross-objection preferred by the respondent. The plaintiff appellant then made an application for restoring the appeal but this was disallowed by the District Judge. Against this order dismissing his application for restoring the appeal the plaintiff moved the High Court and Beckett, J., held that there was sufficient ground for restoration. The appeal was therefore restored and sent to the District Judge for decision on its merits. When the appeal came for rehearing before the District Judge an objection was raised on behalf of the defendant-respondent that, inasmuch as the court had, at the time of allowing his cross-objection, come to the conclusion that the plaintiff had failed to establish the contract and that order had not been set aside, the decision allowing the cross-objection must be held to have become final and operated as res judicata between the parties. This objection prevailed before the District Judge and the appeal was dismissed. A second appeal was preferred in the High Court which held that the order for restoration of the appeal would not have resulted ipso facto in setting aside the order of dismissal passed in the cross-objection. Unless steps were taken to get rid of the order passed on the cross-objection that order, continued to be binding upon the parties and was bound to affect the decision of the appeal if in disposing of the cross-objection it was necessary for the court to come to a decision on facts which would affect the merits of the appeal itself. But this case is not quite relevant for the decision of the present appeal for the question in debate is not what would be the effect of an order which does not set aside the decree of the learned District Judge allowing mesne profits to the respondents, but the question is whether we should in exercise of the jurisdiction conferred by order 41 rule 33 direct not only that the appeal should be reheard but also that the cross-objection should be reheard after we had previously vacated the order of the learned District Judge passed thereon.

Order 41 rule 33 is to the following effect:

“The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or moke such further or other decree or order as the case may require and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or cross-objection”.

The rule has been newly introduced in the Code of 1908. Its object is clearly to enable the court to do complete justice between the parties; Its terms are very wide and in a proper case it gives the appellate court ample discretion to pass any decree or make any order to prevent the ends of justice from being defeated. Having regard to the wide language of the rule it is not expedient to lay down any hard and fast rule regarding its true scope. Involving as it does the exercise of judicial discretion the question whether the court should exercise the powers in a particular case would no doubt depend upon the special facts and circumstances of the case. It may be conceded that the discretion is not to be exercised in an arbitrary manner nor in such a way as to abrogate the other provisions of the Code with respect to the institution of appeals and cross-objections and the like. But there is ample authority for the view that the power contained in rule 33 extends to those cases where as a result of the appellate court's interference with the decree in favour of the appellant further interference is required in order to adjust the rights of the parties in accordance with justice, equity and good conscience [see, for instance, Jawahar Bano v. Shujaat Husain Beg, and Gangadhar Muradi v. Banabashi Padihari]. In the latter case Jenkins, C.J, observes “There is no doubt that the words of that rule are widely expressed, but they must be applied with discretion” and later on the learned Judge adds that no hard and fast rule could be laid down. A similar opinion was pressed by Sir Asutosh Mookerjee in Abjal Majhi v. Intu Bepari. In a Full Bench case Subramania Chettiar v. Sinnammal(4) it was held that rule 33 conferred wide powers upon the appellate court and there was no warrant for limiting the application of the rule only to cases where further interference was required to adjust rights between the parties. In any event upon the facts disclosed in the present case I am satisfied that the order of the District Judge dismissing the appeal and allowing the cross-objection was interdependent and incapable of being dissociated from each other. That being so it is manifest that we ought in this case to exercise the discretion conferred by rule 33 for further interference is required in order to adjust rights between the parties which further interference has been rendered necessary because the ex parte order dismissing the appeal is set aside and it is being restored for rehearing.

For the reasons set forth I should allow this appeal, set aside the order of the learned District Judge dated the 16th and 17th September 1947 dismissing Title Appeal no. 162 of 1947 ex parte and allowing the cross-objection filed by the respondents. Both the appeal and the cross-objection are restored and the learned District Judge should dispose of them according to law after further hearing. It is desirable that the rehearing should be done with as great expedition as possible.

Sarjoo Prasad, J.:— I agree. Even if it be assumed for the sake of argument that order 41 rule 33 has no application to the case there is no reason why under our inherent powers we could not direct all orders passed subsequent to the order under appeal and depending thereon to be set aside.

G.N.P

Appeal allowed.