1. This case raises a point, which, having regard to the way, we know, business is sometimes done in these Courts, is a matter of some importance.
2. The plaintiff filed the suit to recover a large sum of money, from the defendant, and at the time of the hearing, when the case was called on, neither of his counsel was present. However, to enable them to come and appear, defendant's Counsel raised twenty-two issues. At the end of that time, I announced, that I would give a limited time-I think I said five minutes-: for the plaintiff to appear, of course meaning thereby obviously, I either by himself or by his counsel. Then another counsel got up I and said he was instructed to apply for an adjournment but was not instructed on the hearing, and I refused the adjournment. The plaintiff's counsel did not turn up within the five minutes-in fact he did not turn up till nearly about twenty minutes later- and accordingly I dismissed the suit.
3. Now, it is admitted that this is an application under Section 103 of the Civil Procedure Code for the restoration of the suit and it is necessary to see what the section says. The material portion of the section is :
But the plaintiff may apply for an order to set the dismissal aside; and if it be proved that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall set aside the dismissal upon such terms' etc.
4. What, does 'appearance' mean You find in the notes to Section 96 in the latest edition of O' Kinealy as to what is not ' appearance' and what is ' appearance.' It is not an ' appearance' by counsel merely to ask for an adjournment : Hinga Bibee v. Munna Bibee ILR (1903) Cal. 150. It is an ' appearance' when a party is present in person and asks for an adjournment which is refused, or a vakeel is present and says he had no time to prepare.
5. The case that has been referred to-Manilal Dhuvji v. Gulam Husein Vazeer ILR (1888) 13 Bom. 12-seems to me to be exactly in point and it seems to me that I am bound by it. It is a judgment of a Court of co-ordinate jurisdiction. In that case the plaintiff did attend the Court on the day fixed for the hearing and waited for sometime as the Judge happened to be sitting on that day at first in the Appeal Court. Believing that a part-heard case would be proceeded with and would occupy sometime the plaintiff left the Court-house and went to assist his employer who had sent for him to explain some matters connected with a mercantile transaction, and returned in about half an hour and found that in his absence his suit had been called on and dismissed under Section 102 of the Code. It was held, refusing the application, that the above circumstances did not amount to 'sufficient cause ' for his non-appearance when his suit was called on for hearing. He was not taken unawares. He was under no compulsion to leave the Court nor was his absence due to any weighty cause. He accepted the risk of the case being called on in his absence. That case, one would think, was a somewhat severe way of treating a plaintiff. But in this case the plaintiff was actually present in Court and he heard everything that had been done. It is admitted he had his attorney's clerk with him. The attorney's clerk should have heard that I said I would give time until his counsel came in. How, under these circumstances, was he prevented by sufficient cause from appearing, when he himself was here with his attorney's clerk, and does not take any steps to appear or make his case known to the Court t In case he had appeared himself and insisted on reading the plaint and the twenty-two issues slowly until his counsel appeared I could not have prevented him from doing so.
6. With regard to the case of Somayya v. Subbamma ILR (1903) Mad. 599 it seems to me I am bound by the decision of Mr. Justice Jardine in Manilal Dhunji v. Gulam Husein Vazeer ILR (1888) 13 Bom. 12 and I confess that if I were to give effect to the judgment in Somayaga v. Subbdmma in that way, it would be to apply the section far beyond its scope.
7. I must refuse the application with costs.
8. There are other remedies, e. g., by review or appeal, as has been pointed out, which may be open for the plaintiff, and it will be for his advisers to say whether he should take advantage of any of those remedies. I am however happy to have an opportunity of saying that I do hope that this case will be a warning to counsel that it is not the duty of both counsel to be absent in cases where they are feed to appear in Court for their clients without making arrangements by asking other counsel to appear for them. In this respect at all events, I think this is an important case and I hope the Bar and the profession generally recognize it as such.