1. The facts of this case are as follows: The applicant before us was a plaintiff in a suit for a declaration that an entry in a Record-of-Rights was incorrect. The case was instituted on 28th of January 1916. On 26th February, 1917 an order was recorded in the order sheet:
“The plaintiff appears on call but does not prosecute the case. Defendant is ready. Ordered that the suit be dismissed for plaintiff's default with costs to defendant.”
2. On 24th March, 1917 an application was made for restoration of the case under O. 9, R. 9. The learned Munsif, who had himself recorded that the case was dismissed for the plaintiff's default on 26th February, 1917, recorded on 16th June, 1917 that it was not dismissed for default and that therefore he had no jurisdiction to make any order restoring it. The plaintiff therefore applies to-this Court in revision asking us to sat aside the order made on 16th June, 1917. It is contended on his behalf that the plaintiff's appearance and refusal to prosecute amounted to a non-appearance, and that the learned Munsif on that date rightly recorded the matter as a case of default, and that therefore the learned Munsif was bound by law to take up, on the plaintiff's application, the question whether under O. 9, R. 9, it should be restored. By the opposite party it is contended that O. 9, R. 9, being appealable, this Court has no power to interfere in revision. It is obvious that there is no order under O. 9, R. 9, against which an appeal would lie. What the Munsif has actually done is to refuse to exercise jurisdiction in the matter at all. We are therefore only concerned with the question whether in fact the order made on 26th February was an order under O. 9, R. 8. We are of opinion that the view taken in the case of Gopala Row v. Maria Susoya Pillai(1) is correct. A party may appear in two ways, either by 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 meaning of the word.
3. We are aware that a different view was taken in Esmail Ebrahim v. Haji Jan Mahomed Haji Mahomed(2), but are of opinion that the Madras decision should be followed.
4. The Calcutta cases seam to have gone still further that even when both plaintiff and his pleader are present in Court, if the pleader declines to proceed with the case there is in fact no appearance. It is sufficient for us to say that where the plaintiff is not appearing in person, and his pleader is absent, the presence of the plaintiff in Court is not an appearance. We hold that the order of 26th February, 1917 was an order made under O. 9, R. 8, and that the learned Munsif was required to deal with the matter under O. 9, R. 9. He will now proceed to do so.
V.S/R.K
5. Case sent back.