Dawson-Miller, C.J:— These are two appeals which had been tried together. The first is an appeal from an order of the District Judge of Muzaffarpur, dated 6th November, 1910, dismissing the appellant's appeal for default of appearance. The other is an appeal from an original order by the same Judge refusing to restore the appeal dismissed on 6th November. The latter order was made on 12th November, this is some six days later, in which after hearing the parties, the learned Judge came to the conclusion that there was no excuse for the absence of the pleader and the application was accordingly rejected.
2. The facts of the case upon which the appeal from the order of 6th November depends appear, as far as can be gathered from the petition and from the order itself, to be these: that when the case was called on the appellant, who happened to be himself present in Court but was not himself conducting the case, stated that his pleader was absent. It does not appear from the order where the pleader was at that particular moment and there being no appearance by anybody in order to conduct the appeal, the learned Judge dismissed it. Certain supplementary facts have been brought to our notice by reference to the petition in this appeal. The petition is verified if it can be called verification, by an affidavit made by a servant of the appellant. That petition says that the petitioner is a poor man and could not engage more than one pleader, that on the day fixed when the case was called on, the petitioner went to bring his pleader who was engaged before the Subordinate Judge in another place, and that he could not appear promptly before the District Judge. Whether he did appear or not subsequently or whether he had any possible chance of appearing in the course of a short time or whether he had any intention of appearing is not stated in the petition.
3. These shortly are the facts, and the order dismissing the case for want of appearance would certainly on the face of it clearly appear to be an order made under O. 41, R. 17 of the CPC, which provides in effect that where the appellant on the day fixed for hearing does not appear when the appeal is called on the Court may make an order that the appeal be dismissed; but it has been contended that in the circumstances of this case the order could not have been an order made under the rule just mentioned because the appellant did in fact appear and spoke to the learned Judge stating that he would go and fetch his pleader and that circumstances such as that are not contemplated in O. 41, R. 17, and that it is only in a case where nobody puts in any appearance at all in Court on behalf of an appellant that the rule can have any application. We have been referred to two cases which have dealt with this question. The first was a decision of two Judges of this Court in the case of Jugeshar Rai v. Railal Bahadur(1). In that case, on the date fixed for hearing in the trial Court, the plaintiff was present and his application for adjournment was presented for the purpose of filing a list of witnesses and documentary evidence.
4. That application was rejected, and on the same day the learned Munsif who tried the case made an order to this effect:
“No further step is taken. The case is dismissed with costs.”
5. From that decision an appeal was preferred and the learned District Judge held that no appeal lay to him. He accordingly dismissed the appeal making no order as to costs. Against that order of the District Judge this High Court was moved in revision, and the learned Judges who heard the application came to the conclusion that the learned District Judge was in error in holding that no appeal lay to him because they said one at least of the plaintiffs was present when the case was taken up for hearing. Therefore it could not be held to be a dismissal for default and the District Judge should have taken up the case on appeal and determined whether the application for adjournment was properly refused or not. It does not appear from the somewhat scanty statement of the facts in that case whether the plaintiff who appeared was there for the purpose of conducting his own case or not and therefore, so far as that decision goes, it is impossible to hold that it governs the facts of the present case.
6. In another case also decided by a Division Bench of this Court, viz., Lalji Sahu…Plaintiff Applicant; v. Lachmi Narain Singh…Opposite Party.(2), pretty much the same question had to be determined, but in that case the facts are more clearly stated and they appear to me to bear greater analogy to the present case than the facts stated in the case of Jugeshar Rai v. Railal Bahadur. In there case the plaintiff happened to be in Court when the case was called on and his pleader was absent. It appears however that the plaintiff himself was not conducting his case in person and owing to the absence of his pleader, the Court dismissed the claim and declined to entertain an application by the plaintiff for restoration under O. 9, R. 9 of the CPC, on the ground that it had no jurisdiction. The matter came up before the High Court in revision under the latter order. The case however deals with the question of whether a dismissal of a case for default under such circumstances as existed there was in fact a dismissal for default, or whether it was a case where there was no default of appearance and which the Judge ought to have determined on the merits. The learned Judges of this Court dealt with that question in this way. They said:
“A party may appear in two ways either in person or by pleader. If he is not appearing in person, the mere fact that he is standing in Court does not amount to an appearance within, the real meaning of the word. It could not be suggested for instance that if, when a case was called on, a litigant stood up at the back of the Court and applied for a few minutes time to bring his pleader he would be appearing in the true morning of the word.”
7. Then the learned Judges quoted certain cases where a different view had been taken, but came to the conclusion that was not the proper view, and that the proper view was what they had themselves expressed and which was supported by a decision of the Madras High Court in the case of Gopala Rom v. Maria Susaya Pillai(3). Incidentally they point or that the Calcutta High Court seem to have gone still further.
8. It seems to me, if and in so far as there is any conflict between the two cases which I have just referred to—and I do not think there necessarily is—that the last case of Lalji Sahu…Plaintiff Applicant; v. Lachmi Narain Singh…Opposite Party. is the decision which we ought to follow. O. 41, R. 17, as well as O. 9, R. 8 and rules of similar import refer to the word “appear,” and it seems to me quite clear that word as used in these rules does not simply mean that the party or his pleader are physically present in Court and therefore can be seen by the eye, but it has a much more technical meaning, that is to say, that they are actually present in Court for the purpose of conducting the case. Now it is quite clear in the present instance that the party himself, although he happened to be present in Court as an interested spectator, was not therefore the purpose of conducting his own case, nor did he ever for a moment attempt to do so. Hence I am of opinion that there was a default of appearance in the present case such as is contemplated by O. 41, R. 7, and that the order made on 6th November, 1918 was clearly an order made under that rule and it disposed of the appeal.
9. With regard to the other appeal, the only question we have to consider is whether the learned Judge properly considered the question before him. The application then before him was an application under O. 41, R. 19, which provides that where an appeal is dismissed under certain of the previous rules of the same order, including R. 17, and it is proved that the appellant was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall retry the appeal on such terms as to costs or otherwise as it thinks fit. The actual words of the order made which is the subject of the present appeal are these:
“Heard. Absence of a pleader is no excuse. This application is accordingly rejected.”
10. All the learned Judge had before him in order to determine whether the non-appearance of the pleader on the occasion in question was justified or not was the petition which I have referred to earlier and the affidavit made by the petitioner's servant, and the affidavit is certainly very unsatisfactory. It is an affidavit of a servant who does not state that he was present in Court and knew what had taken place, but merely states that the facts alleged in the petition were true. There was no affidavit by the petitioner himself or by the pleader, nor was any evidence apparently called, and I think that in these circumstances we cannot say that the Judge was not justified in dismissing the application on the ground that he was not satisfied that the absence of the pleader had been justified by the evidence before him it is quite true that in the very short order which was made he does not deal with it in that way but merely says that the absence of the pleader is no excuse, but, at the same time, as this is an appeal from an original order, we are entitled to consider the material which the learned Judge had before him, and I cannot help thinking that what was really in his mind was that there was nothing in the evidence before him to show anything more than that the pleader was in fact absent and that there was no justification made out why he was not present when the case was called on. Speaking for myself I think it is desirable if possible, to accommodate parties to same extent if their pleaders happen to be absent in another Court and have a chance of attending within a short time so as not to disturb the business of the Court, but a Judge is not bound to wait, and it does not appear from the circumstances of the present case that the pleader would have been able to return and conduct the case at any period during that day. In fact it is not even alleged in the petition and, as I have already said, the only affidavit verifying the petition is that of the appellant's servant which is certainly not of a satisfactory nature. In these circumstances therefore we do not feel justified in reversing the decision arrived at by the learned District Judge dismissing the application for restoration of the appeal. These appeals are dismissed with costs.
11. Foster, J.:— I agree.
V.S/R.K
12. Appeals dismissed.