Lallubhai Shah, Kt., Ag. C.J.
1. The facts which have given rise to this application are these. In Suit No. 468 of 1921 filed by the plaintiff, the defendant was represented by a pleader, a written statement was filed, and the case was adjourned from time to time when the defendant was absent. The case was ultimately fixed for hearing on September 7, 1921, when the pleader was present in the Court, The defendant was absent. At that time the pleader did not ask the Court to adjourn the case, nor did he state to the Court whether he had any instructions to go on with the case; but in face he took no part in the conduct of the suit. The result was that when the plaintiff's evidence was recorded, the Court proceeded to give judgment and passed a decree on that day, It is stated in the judgment that the defendant does not appear to contest the suit.
2. Thereafter the defendant made an application to the trial Court on the basis that it was an ex parte decree and prayed that it should be set aside as he was absent for sufficient cause, lie alleged that he was not represented because his pleader had no proper instructions. In other words, he contended that he did not appear on the date of hearing by a pleader duly instructed and able to answer all material questions relating to the suit within the meaning of Clause (b) of Rule 1 of Order V of the Civil Procedure Code. The trial Court rejected this application holding that the case was not decided ex parte because the defendant's pleader was present in the Court at the hearing. The learned Judge further observed:
He never said he had no instructions to conduct the case. After framing the issues the case was fixed for evidence. On that date the defendant's pleader was present but he did not Bay that ho wan not going to conduct the case. Under these circumstances I do not think it was an ex parte hearing. I need not go on with the merits of the case as I am dismissing the application summarily.
3. From this order the defendant appealed to the District Court, but that appeal was dismissed under Order XLI, Rule 11. Apparently the defendant appealed from the decree also, and that appeal which was heard on the same day, was also dismissed under Order XLI, Rule 11.
4. The defendant has now applied to this Court for having the order of the trial Court set aside, and to have his application heard and decided on the merits. He has also preferred a second appeal to this Court, which is at present pending. The judgment given on September 7 does not in terms indicate whether the learned Judge purported to act under Rule 2 or Rule 3 of Order XVII, The judgment in term states that the defendant does not appear to contest the suit, and the defendant's allegation is that his pleader was not properly instructed. It is clear that if the defendant is able to make good his allegation that the pleader was not duly instructed, the hearing of the case would be ex parte, even though the pleader was present in Court, If, however, the defendant appeared properly as required by Rule 1 of Order V, that is, by a pleader duly instructed and able to answer all material questions relating to the suit, the hearing would not be ex parte, This question has not been adverted to in the judgments of either of the lower Courts. It seems to us that unless it is determined that the defendant appeared by a pleader duly instructed, the disposal of the suit would be ex parte, and in that case it would be competent to the defendant to make an application with a view to show that there was sufficient cause for his not appearing on the date of the disposal, If, however, the defendant is unable to prove that the pleader was not duly instructed and able to answer all material questions relating to the suit, the hearing would not be ex parte, and in that case his application to set aside the decree, on the basis that it is an ex parte decree, could not be entertained.
5. As the trial Court has not considered this question on the merits, we must send back the case to that Court for disposal according to law. We accordingly make the rule absolute, set aside the orders of the lower Courts and send back the application for disposal according to law. Costs of this application and of the lower appellate Court to be costs in the application.