Ram Labhaya, J.
1. This petition of revision is directed against the order of the Munsiff, Gauhati, dated 12-4-1951, by which he ordered the restoration of a suit which had been dismissed for default on
28-11-1950. The order dismissing the suit in default was in the following terms :
'Plaintiff is unready She prays for an adjournment on account of the absence of the witnesses. The defendants are ready The case has been dragging for the last 31/2 years. So I am afraid no more adjournments can be allowed. The prayer is rejected. Suit dismissed for plaintiff's default.'
2. The order by which the suit was restored was based on the finding of fact, that some of the plaintiff's witnesses could not attend the Court on 28th November, by reason of illness and plaintiff, therefore, had reasonable grounds for asking for adjournment which according to the learned Munsiff had been refused on inadequate grounds.
3. In revision, it is contended on behalf of the defendant that the order dismissing the suit though in terms for default was substantially an order under Order 17, Rule 3. The order, therefore, had the force of a decree and was appealable as such. An application for restoration of the suit was, therefore, not competent and the Munsiff had no jurisdiction to restore it. I am not impressed by this argument. The circumstances under which suit was dismissed leave no room for doubt that Order 17, Rule 3, was not attracted and it is also clear to my mind that the Court had no intention of proceeding to decide the suit on the merits nor has it apparently done so. The order passed by the Court on 5-9-1950 shows that plaintiff was ready while the defendant was not and that the defendant asked for adjournment. The learned Judge also noticed that the plaintiff had not summoned a particular witness and permitted her to summon that witness. The case was adjourned to 28th November, on which it was dismissed for plaintiff's default. It is clear from the order of 5th September, that plaintiff did not ask for any adjournment nor was she granted time on her request for doing any of the acts mentioned in Rule 3 of Order 17, e. g., for producing evidence or for causing the attendance of her witnesses or to perform any other act necessary for the further progress of the suit. What happened was that plaintiff was ready. Defendant asked for an adjournment and when acceding to defendant's request the Court noticing that a witness had not been summoned by the plaintiff permitted the plaintiff to summon him without any request from her and without imposing any obligation on her to do so. The order, therefore, does not at all show that time was granted to the plaintiff for doing any of the things mentioned in Order 17, Rule 3. The order of 28th November also does not indicate that plaintiff failed to perform any of the acts for which adjournment was ordered. Order 17, Rule 3, in this circumstance could not apply.
4. From the order of 28-11-1950, it appears that the Court when dismissing the suit did not have Order 17, Rule 3 in mind. It stated that the plaintiff was not ready and asked for adjournment on account of the absence of the witnesses. The fact that defendant was ready was noted. The reason for refusing the adjournment is that the case had dragged on for long. The prayer for adjournment was rejected and the suit dismissed for default. Since the Court did not indicate in express terms whether it acted under Order 17, Rule 3 or under Order 17, Rule 2, it has to be determined from the circumstances of the case, Sri Ram Mahtab Singh v. Mahtab Hassan, A.I.R. 1928 Lah. 427 (2), whether the order was really one under Rule 2 or Rule 3. The emphasis in the order is on the fact that plaintiff was not ready and the defendant was ready. That shows that plaintiff's advocate was not willing to proceed with the case. If he was ready to proceed with the case there could not have been any dismissal for default. The Court when refusing the adjournment also dismissed the suit for default. There was no interval. It could not, therefore, be stated in the order that after the refusal of adjournment the plaintiff's advocate retired from the case.
In the petition of revision it has been stated in express terms that the advocate had instructions only to ask for an adjournment and that he retired when the adjournment was refused. This statement is supported by an affidavit and no counter affidavit has been put questioning the correctness of the statement. The statement (in the revision petition) finds circumstantial or indirect support from the order of 28-11-1950 which punishes the plaintiffs for default, viz., for not being ready to proceed with the case. I have no reason to disbelieve this statement.
Besides, even if the plaintiff's advocate did not physically retire, the indication that he was not ready to proceed with the case was tantamount to his absence for purposes of the proceedings. An advocate who is not ready to proceed with the case cannot be treated as representing the plaintiff. The basis of the application for restoration was that owing to the absence of important witnesses the case could not be proceeded with. The Court in these circumstances could either adjourn the suit or it could dismiss it for default after refusing to grant adjournment. The Court refused to grant the adjournment and dismissed the suit for default. The fact that the advocate was not ready to proceed with the case could have been treated as amounting to his absence or retirement from the case vide, Bejoychand v. Satishchandra, 9 Ind. cas. 842 (cal). There is no appearance on behalf of a party merely because a pleader who has instructions only to apply for an adjournment applies for an adjournment on his behalf. There is nothing in the order of the Court to suggest that it proceeded with the suit and that then disposed it of on the merits. If the learned Munsiff had intended that, he would have made some reference to the statement of the plaintiff that had already been recorded. He would also have recorded the evidence of the defendant. He did not adopt this course and this attitude indicates beyond any doubt that he had no intention to proceed to decide the case on the merits, and has not in fact done so. The order in question, could not, therefore be treated as one under Order 17, Rule 3.
5. Mr. Lahiri has pointed out that the statement contained in the revision petition that petitioner's advocate retired from the proceedings after the application for adjournment was refused, is not correct. He has referred me to a statement contained in the plaintiff's application for restoration of the suit. In this application it was stated on behalf of the plaintiff that the Court without asking whether the suit would be proceeded or not dismissed it as an old suit. This statement may possibly lend itself to the construction that Mr. Lahiri seeks to put on it.
But I am not prepared to hold that it is so completely inconsistent with the stand taken up in the petition of revision that I should find it as fact that the statement that plaintiff's advocate retired from the case is false. The advocate prayed for an adjournment by an application on the ground of absence of important witnesses for reasons which were beyond his control. He indicated as is evident from the order that he was not ready to proceed with the case. Having got that indication of the attitude of the plaintiff's advocate, the Court on refusing to adjourn the case could dismiss it for default. It seems to me that the statement in the petition was made to emphasise the fact that the Court, if it had decided to proceed under Order 17, Rule 3, would have given to the plaintiff's advocate, an opportunity to produce witnesses present in Court. Whatever the attitude of the plaintiff's advocate was, the Court, if it found that Order 17, Rule 3, was applicable to the circumstances of the case was not bound to apply it. It could not proceed under Order 17, Rule 2 as the facts justified its application. The Court is not bound to proceed under Order 17, Rule 3, in every case in which its application is attracted.
The statement in the petition could have been made to indicate that the order of the Court was not under Order 17, Rule 3. It cannot be regarded as definite or conclusive proof of the fact that plaintiff's advocate was not there merely to request for an adjournment but that he had instructions to proceed with the suit. The improbability of this position is evident, for if plaintiff's advocate was ready to proceed with the case the Court could not prevent him from doing so. Mr. Lahiri is reading too much in the statement. I am, therefore, of the view that it cannot be said that the Court in the circumstances of the case could not dismiss the suit for default under Order 17, Rule 2. My interpretation of the order is that it is covered by Order 17, Rule 2 and this is what was intended by the Court. The order of 28th November contains sufficient intrinsic evidence which points unmistakably to the conclusion that I have arrived at.
The fact that plaintiff's statement had been recorded before it could have been utilised by the Court if otherwise the provision of Order 17, Rule 3 could apply to the case. But I have already come to the conclusion that such was not the case. I have also found that the Court did not act under Order 17, Rule 3. This circumstance, therefore, is immaterial. The contention that during the presence of plaintiff's advocate, the Court could not dismiss the suit for default must also be overruled, as it cannot be said in the circumstances of this case that plaintiff or his advocate was present and appearing when the suit was dismissed for default.
6. Mr. Lahiri has produced some authorities. They are not of any assistance to him in this case. The first case relied on by him was one reported in Manickam Pillai v. Mahudum Bathummal, A.I.R. 1925 Mad. 209. In that case, the suit which was dismissed for default had been restored as a matter of grace. The High Court interfered in revision on the ground that the order was without jurisdiction. But I have found that the order of the Court in this was not only not without jurisdiction but that it was perfectly legal in the circumstances of the case. In K.B. Dutt v. Shamsuddin Shah, A.I.R. 1930 Cal. 488, it was held that an ex parte decree was set aside not on the grounds contained in Order 9, RULE 13, but by resort to the inherent jurisdiction of the Court under Section 151. The order was liable to interference in revision and was so interfered with. These two cases could have helped the petitioner if it could have been held that the order of dismissal for default was not covered by Order 17, Rule 2 and was either illegal or irregular. In that case, the learned Munsif could not have entertained the application for restoration of the suit. In view of the conclusion which I have reached, these authorities are of no assistance to the petitioner. The last case relied on by the learned advocate is Munna Lal v. Shiva Charan Lal, A. I. R. 1933 ALL. 539. In this case, it was found as a fact that plaintiff's pleader was present and was willing to argue. It was held that the suit could not be dismissed for default and that in the circumstances of the case, the lower Court ought to have proceeded with the case. On facts, this case is distinguishable.
7. In view of the conclusion that the order of the Court is covered by Order 17, Rule 2, it cannot be held that the order was without jurisdiction. The finding of fact which forms the basis of the order has not been challenged. The petition for revision in these circumstances must, therefore, fail and is dismissed with costs.