Muhammad Bakar Ali v. Chulhai Mahton

Mullick, J.:— The plaintiff instituted the suit for declaration of title and recovery of rent, and after various adjournments 26th April, 1917 was fixed for the decision of the suit. On that day the Court recorded the following order:

“The pleader for the plaintiff states that he is unable to adduce any evidence. The plaintiff is also present in Court, but does not adduce any evidence in support of his case. The defendant is ready. Ordered that the suit be dismissed for default of the plaintiff. The defendant will get costs of the suit.”

2. The plaintiff thereupon appealed to the Subordinate Judge, who on 6th September, 1917 held that no appeal lay, as the dismissal was one for default under the provisions of O. 9 of the CPC, read with R. 2, O. 17.

3. The present second appeal is lodged by the plaintiff against the aforesaid order passed by the Subordinate Judge. Now the question is whether any second appeal lies.

4. Order 9 relates to procedure on the first day of hearing; R. 3 of that order states that if neither party appears, the Court may make an order that the suit be dismissed. R. 8 directs that when 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 unless the defendant admits the claim or part thereof, in which case the Court shall pass a decree against the defendant upon such admission. O. 17 relates to procedure after the first day of hearing. R. 2 of that order enacts that if on the adjourned date parties fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by O. 9, or make such other order as it thinks fit; that is to say, if the plaintiff fails to appear, the Court may dismiss the suit under O. 9 or fix another date for hearing. If the Court fixes another date for hearing and the plaintiff still fails to appear, the Court may dispose of the suit under R. 2, O. 17 read with O. 9. If however the plaintiff does not fail to appear but fails to produce his evidence or to perform any other act necessary for the progress of the suit, the Court may proceed to decide the suit, forthwith.

5. In the present case it is contended that the Court has acted under the last part of the rule, that there was an appearance by the plaintiff, and that the Court, refusing further adjournments, has decided the suit forthwith. The order itself does not state under which rule the Court has acted; that is to say, whether under R. 2 or R. 3, O. 17. We have therefore to look at the facts, so far as they appear in the paper book, to judge whether or not the order of dismissal was a decision of the suit within the meaning of R. 3; in that case the appeal would lie.

6. It is contended that because the plaintiff's pleader did not inform the Court that he had no instructions the order of dismissal cannot be one under O. 9 and that it must be a decree under the latter part of R. 3, O. 17.

7. I am unable to accept this argument. In my opinion what occurred was this; the pleader who was appearing for the plaintiff said that he had no evidence and thereupon the Court, without applying its mind to the merits of the case or in any way adjudicating upon the rights and liabilities of the parties, dismissed the suit for the default of the plaintiff. That clearly was an order under R. 2.

8. The personal appearance of the plaintiff in this case makes no difference, for he had engaged a pleader and was therefore not competent, so long as his pleader was acting for him, to be heard by the Court. In order that there may be appearance within the meaning of Os. 9 and 17 by a pleader, I think it must be shown that the pleader was duly instructed and able to answer all material questions put by the Court. There is nothing to show in this case—in fact the indications are quite to the contrary—that the pleader, when saying that he had no evidence to produce, was duly instructed and able to answer any material questions. In order to apply R. 3, I think it must be shown that there was something upon which the Court could bring its judicial mind to bear in the shape of either evidence or pleadings and that the Court did before making its decision duly apply its mind. We cannot assume in this case that the Court did so, and we think that it is a safe rule to lay down that, unless the facts clearly indicate that there was an adjudication, an order of dismissal, whether it be for want of evidence, or not, should be treated as an order O. 9 of the CPC. In this connexion I think it advisable to make some reference to the case of Naurang Ram Sahu v. Bhakhori Mandar(1), in which I had occasion to observe that in recording orders of dismissal for laches on the part of the plaintiff, the Court should be careful to state whether he is acting under R. 2 or R. 3, O. 17. In that case on the adjourned date of hearing the plaintiff, after obtaining time for that purpose failed to amend the plaint, and the Court recorded an order that the suit was dismissed because no steps had been taken for its prosecution. I was of opinion that the Court had not acted under R. 2 because it was the duty of the Court, notwithstanding the failure to amend the plaint, to proceed with the trial of the suit, and because the plaintiff's pleader being apparently anxious to proceed it could not be said that there was any failure to appear.

9. In the present case there is no indication that the plaintiff's pleader was either willing to have the suit decided on the merits or that the Court in any way applied its mind to the rights and liabilities of the parties. The appeal therefore does not lie and the order must be treated as an order under R. 2. The appellant's proper remedy was an application for restoration under O. 9.

10. The appeal is therefore dismissed with costs.

11. Atkinson, J.:— I concur.

V.S/R.K

12. Appeal dismissed.