Walsh, J.:— This is an appeal from an order of the District Judge of Aligarh refusing to restore a case which had been dismissed by the Special Judge appointed by this Court to try the case, as he said, for default, it not being quite clear whether he meant to dismiss it under one or other of the 2nd or 3rd rules of Order 17. The case Which was undoubtedly presented before us with great ability, has a very long history and gives rise to a great many considerations, and in some respects the members of the Court hearing the appeal do not regard the questions which have come up for discussion precisely in the same light, but we have come to the conclusion that the appeal must be dismissed. It is never satisfactory to dismiss a suit without trial, but speaking for myself I agree substantially with every word of the very long and elaborate order passed by Mr. Kisch, the District Judge, in March 1920, refusing to restore the case,-the order now under appeal.

2. I have followed as closely as possible all the arguments and all the relevant facts and documents to which we have been referred and I cannot find any inaccuracy of statement, or any fallacy in reasoning, throughout the whole of that long order of Mr. Kisch. It would be to my mind superfluous to re-state the history of the case. I could not do so more effectively than in the language of the learned Judge of the court below. I merely propose to refer to one or two additional topics, not dealt with by the learned Judge in quite the same way as I propose to deal with them, which to my mind carry great weight. Mr. G.W Dillon has argued the case with his usual ability and fairness throughout and he based his main argument upon one point; this he described and ingeniously sought to make out as a mutual understanding which prevailed between the parties and the court that evidence would not be recorded in this suit until the second suit was ready for trial.

3. I come without hesitation to the conclusion that no such understanding in the real sense of the word did in fact exist although the plaintiffs may have formed hopes of reaching that stage.

4. I pass on to a stage in the history of the case which I think is fatal to the appeal, namely, the position of the plaintiffs when the case came on for hearing on the 4th of June. I quote from the judgment of the learned Judge:— “The plaintiffs had exhausted all the means that the law allowed them for obtaining a stay of proceedings in the first case, and they were faced with the alternative of either submitting to the order of the court and producing their evidence or deliberately disreg arding the order of the court and making another effort to get the case adjourned, with all the risk that such a proceeding involved. They chose the latter course.”

5. What the learned Judge refers to there consists of two separate matters, either of which, in my judgment, is sufficient to dispose of this appeal. On the 10th of May the plaintiffs became aware that on the 7th of May the High Court, on the administrative side, refused to transfer the second case to the Special Judge and indicated that that question could be considered when the first case was nearing completion. As the learned Judge rightly points out that communication turned the provisional order which the Special Judge had made fixing the date of hearing on the 4th of June into an absolute order. In addition to that the plaintiffs had made, on the 2nd of June, a last and desperate effort to get the High Court to stay the suit which the Special Judge was going to try. That was refused. Whether from the 2nd of June or from the 10th of May, it matters not from either date it was the duty of the plaintiffs to be ready with their evidence and to continue the case on the 4th of June. It is quite clear that they deliberately decided not to be ready. During the proceedings which took place on the 4th, 5th and 6th of June, one of the plaintiffs left the court professedly to get witnesses; the other went post-haste, undoubtedly with the full concurrence of his co-plaintiff, to Allahabad to seek advice from their leading counsel. The result of that was that a telegram was sent in the following terms, by the plaintiff in Allahabad to his pleader at the place of trial, Apply withdrawal get a fortnight for arguments if possible. Whether the vakalatnama authorized the withdrawal, a point which I consider an idle one, the telegram contained express authority, and the Judge was wrong on this point. On the back of the application for further adjournment made on the 5th of June the following endorsement was made, A week's time may be granted to us, during this period we will produce witnesses who will be able to attend. As to the remaining witnesses we will apply to have their summonses delivered to us personally so that the court's time may not be wasted. The sole object of the application is that time may be granted to us to secure the attendance of the witnesses In spite of that deliberate statement made by a responsible lawyer for the plaintiffs, Thakur Manak Singh, one of the pleaders for the plaintiffs, had the effrontery to deny in court the next day that the adjournment had been made for the production of witnesses, and it has been admitted on behalf of the plaintiffs that there never was any intention to produce evidence. Pandit Shiam Krishna Dar, another pleader, aptly observed that if he had been really engaged in getting witnesses and had been prepared to produce some, he would have sent an urgent wire to the Special Judge informing him of that fact and asking for a temporary adjournment until he had such as could arrive. The learned Judge, whether with a desire to prolong his occupancy of the temporary post which he held, or because he lacked the necessary grip of the reins to get the parties to go on with the work, to my mind, showed exceptional, and I think unnecessary, indulgence to the plaintiffs. It was open to the plaintiffs either on the 5th or the 6th or the 7th to go on with the case and produce their witnesses. It is alleged that some of the witnesses were present in court on the 5th. It is not denied that some of them lived in a zemindari within 6 or 7 miles of the court. I come unhesitatingly to the conclusion on these materials that on the advice of counsel, for reasons which I either do not know or I do not consider adequate, the plaintiffs deliberately decided to take no further steps at that stage in the prosecution of their case. I would merely observe, as introductory to what I am going to say in a moment, that at the final disposal of the case they were represented by counsel who had definite instructions to withdraw from the case and not to produce evidence. Both the plaintiffs, either of whom one would have expected in a case like this were necessary witnesses, voluntarily absented themselves, admittedly for purposes connected with an alternative method of disposing of the case which they preferred to that of having a trial. This brings me to the last point which has weighed with me throughout the argument to which I see no answer, namely, what was the real disposal of the case. I accept the view which I understand has been decided, that where a party does not personally appear even although his counsel originally instructed is there, if he has failed to supply his counsel with materials or funds or any other necessary matter for the prosecution of the suit and the counsel states that he has no further instructions, although that situation may be drawn into the express words used in rule 3 of Order XVII, it ought to be treated as a default by the plaintiff for want of appearance under rule 2 of Order XVII. The reason for this view is doubtless that counsel no longer represents him, and in that sense counsel is not present in the name of the plaintiff, while the plaintiff is himself absent.

6. The learned Judge in this case decided that the case was covered by Order XVII rule 2, in which case an application for restoration was lawfully made, if well-founded. But I have come to the conclusion that it was not, and that under whatever form the Judge may make an order disposing of a case or however he may misunderstand what he is doing, or whatever mistaken language he may use in disposing of the case, the court has to look at the actual facts as things were at the time, and decide under which rule the order was made. I understand that to be the view taken in the case of Lalta Prasad v. Nand Kishore(1). All I can say is that a bare recital of what the plaintiffs did in this particular case leads my mind inevitably to the conclusion that on the 5th, 6th and 7th of June the plaintiffs were a party to whom time had been granted, and who failed to produce their evidence, and failed to cause the attendance of their witnesses and to perform all acts necessary to the further progress of the suit for which time had already been allowed, and notwithstanding that they were in default in that respect, the court had a right to proceed to decide the suit. It did not do so with the care and circumspection which should be exercised on such an occasion, by taking up the issues and answering them definitely one by one, a course which personally I always adopt even in an undefended divorce case which I have to try in this Court. To quote from the notes contained in the well-known text book on the Civil Procedure Code by Woodroffe and Ameer Ali under this particular rule, I think this was a case of a plaintiff who, having provided the court with materials, had failed to substantiate his claim. Counsel, months before, had spent ten days in opening the case and in submitting to the court his views of the five hundred documents involved. All that material was before the court. Admittedly it failed to substantiate the plaintiffs' claim. It seems to me that it was the duty of the court, and the only duty of the court under the circumstances, to dismiss the suit under Order XVII rule 3 and that it must be taken that this is what it really did. I am confirmed in this view by the fact that the learned Judge, although he has separately decided that the dismissal was for default under rule 2 of Order XVII, felt himself almost unconsciously constrained to hold the contrary when he was recapitulating his statement of the plaintiff's proceedings. He says, not only have they failed to show sufficient cause for their non-appearance but they did, in fact, legally appear by their pleader and refused to go on. It has been suggested that it would be a hardship to hold the plaintiffs to Order XVII rule 3 because if the court really thought it was making an order under Order XVII rule 2, thereby misleading the plaintiffs, the plaintiffs would have lost the right of appeal which undoubtedly they would have against a decree under Order XVII rule 3. I would merely point out, in answer to this suggestion, two things: first, it is difficult to conceive how the plaintiffs could be misled. Although it is not too much to say that by their manoeuvres in this case they did lead the learned Judge into various mistakes, they must have known better than anyone else that they had not failed to appear but that they had deliberately decided and refused to produce any further evidence or witnesses. Therefore it was impossible that they could have been misled. Secondly, the right of appeal which they had against the decree which it was the duty of the court to pass under Order XVII rule 3 was a perfectly worthless one. Having regard to their conduct throughout and particularly on the material dates, the 4th, 5th and 6th of June, any appeal would have been a hopeless one and must have been known to the plaintiffs and their advisers to be hopeless. For these reasons and for those stated by the learned Judge I think the appeal ought to be dismissed with costs.

Piggott, J.:— It has become necessary for us to pronounce an opinion on the question whether the order dismissing this suit was passed under Order XVII rule 2 or under Order XVII rule 3 of the Civil Procedure Code, because the respondents have not abandoned the plea on this point which they took in the court below. They are in fact seeking to support the decision of that court, i.e the order rejecting the application of the plaintiffs for the re-institution of the suit, on, a ground taken in the court below but decided against them, namely, that no such application was entertain able at all, inasmuch as the dismissal of the suit was directed under Order XVII rule 3, of the Civil Procedure Code. I do not myself find it possible to accept this view. The suit was down for hearing on the 4th of June 1919. The duty was on the plaintiffs of producing evidence. They applied for an adjournment. Arguments on the question whether an adjournment should or should not be granted lasted all that day and were only concluded on the day following. The court then granted an adjournment of one day, i.e it fixed the 6th of June 1919 for the further hearing of the suit and directed the plaintiffs to begin producing their evidence on that date. When the case was called upon, a pleader purporting to act for the plaintiffs put in an application for permission to withdraw from the suit with leave to bring a fresh suit. This the court, after some argument, rejected on the ground that the pleader presenting it had no authority to make such an application. The same pleader then asked for a further adjournment and this was also refused. The pleader then stated that he had no instructions to do anything else in the case. It is not quite clear from the order-sheet whether he followed up the declaration by physically removing himself from the court-room or not. We were told in argument that he did so; and I should be inclined to infer from the order-sheet that he did so, because it is noted that the court thereupon proceeded to call for the plaintiffs and found that they did not appear. A point had, therefore, been reached at which it was literally true that the plaintiffs were absent, neither appearing in person nor by counsel authorised to act on their behalf. The defendants were present and the court could there and then have dismissed the suit. I think it ought to have done so, and it could have done so in a very brief order. However, the order actually passed was that judgment would be pronounced on the following day. On the 7th of June 1919 a Barrister appeared for the plaintiffs and again presented an application for permission to withdraw from the suit with leave to file a fresh one. This was also rejected, and the gentleman in question thereupon left the room. The court sent for him and asked him, and also the Vakil who had appeared on the previous day, whether either of them had instructions to take any step on behalf of the plaintiffs. Having received negative answers to these questions the court proceeded to dismiss the suit. I think the court believed itself to be acting on the principles laid down by this court in the case of Lalta Prasad v. Nand Kishore and that it believed itself to be dismissing the suit because the plaintiffs were not present in person and not represented by pleader instructed to take any action on their behalf. I would, therefore, hold that the application for re-institution of the suit was maintainable. [The judgment then went on to consider the application ion its merits.]

7. I am prepared to hold, and I do hold, that the plaintiffs have not shown sufficient cause for their failure to enter an appearance on the 6th or 7th of June 1919 in the trial court. I agree, therefore, in dismissing this appeal.

8. By the Court:— The order of the Court is that the appeal be dismissed with costs.

9. This being a first appeal from order the question of its valuation does not affect the court-fee, but it does affect the pleaders' fee chargeable, and there is nothing in the memorandum of appeal to explain why the appellants have elected to value this appeal at Rs. 30,000 when the suit was valued at 3,00,000. We think that for the purpose of calculating pleaders' fees this appeal should be valued at Rs. 3,00,000 and we direct accordingly.