1. This Rule has been taken out by the defendant No. 2 in suit No. 747 of 1910 to have the ex parte decree, dated the 16th June 1911, set aside. It is admitted that, he had notice and he has actually filed a written statement. So that the only point to be considered is whether he was prevented by sufficient cause from appearing. Mr. Jafferbhai in showing cause against the Rule has contended that the decree was not ex parte and that as in fact defendant No. 2 was present in Court it is impossible to argue that he was prevented from appearing. On referring to my notes, I find it to be a matter of record that when the suit was called on defendant No. 2 was called and making no response was declared to be absent. It is, however, sworn by the plaintiff that defendant No. 2 was actually in Court at the time, and upon this ground and the authority of two decisions of this Court, Honapa v. Narsapa ILR (1898) 23 Bom. 406 and Esmail Ebrahim v. Haji Jan Mahomed ILR (1908) 33 Bom. 475, it is urged that I am precluded from further considering defendant No. 2's allegation that he was prevented by sufficient cause from appearing. The first of these two cases is plainly distinguishable. There the defendant did actually appear in person and applied to the Court for an adjournment. In the second case the plaintiff had instructed counsel to appear but they were unable to be present. When the case was called on, the plaintiff, who was in Court with the attorneys' clerk, seems to have instructed some other counsel to apply for an adjournment. The plaintiff was admittedly present in person and had witnesses with him ready to be examined. The adjournment was refused and suit dismissed for default. When the matter went up in appeal, the appeal Court reversing the decree of the Court below and restoring the suit, made some observations upon Sections 102 and 103 of the old Code of Civil Procedure, upon which the plaintiff now relies. I do not think, however, that either of those decisions goes the length which the plaintiff would now seek to carry them. I should find it very difficult to hold that merely because a party is alleged to have been seen within the precincts of the Court on the day of the trial that he must be held to have appeared within the meaning of Order IX, Rule 13. 'Appearance' in that context, as in all the corresponding sections of the old Civil Procedure Code, has, I think, very distinct legal connotation. We use the phrase 'to file an appearance' without implying that the party so filing an appearance has been physically present in Court, and merely bodily presence of a party, who has no legal assistance and is perhaps too terrified to put himself forward and Endeavour to represent his own case, does not, in my opinion, satisfy all the required legal connotations of the word 'appearance;' and no Judge can know whether a party is or is not within the precincts of the Court. The established procedure is to call out the names of parties and if they do not respond and are unrepresented, the conclusion is that they are absent. If what is contained in the affidavit of the plaintiff be true, then I agree with Mr. Mirza that it was his plain duty to inform the Court that the defendant No. 2 was present and might be interrogated if the Court thought fit to do so. Nothing of the kind was done and the Judge's notes, which as a matter of record are conclusive upon all points of this kind, show that so far as the defendant No. 2 was concerned, there was no appearance. This disposes of two of the grounds upon which Mr. Jafferbhai has shown cause against this Rule.
2. The third and most material ground is now to be considered. I am to be satisfied that the defendant No. 2 was prevented by sufficient cause from appearing when his case came on for trial. What actually happened is not in dispute. Up to the day before the trial, the defendant No. 1, who is the father of defendant No. 2, and defendant No. 2 were represented by the same firm of attorneys. Defendant No. 1 required the defendant No. 2 to give evidence in the case which he (defendant No. 2), considering such evidence to be untrue and prejudicial to his own interest, refused to do. The attorneys then very rightly considering that they could not consistently act for both father and son who had thus shown themselves opposed to each other in interest, wrote to defendant No. 2 on the morning before the case was heard and decided, intimating that they would no longer act for him, and suggesting that he should employ some other firm. With so little time at his disposal, his present contention is that he was quite unable to get himself properly represented. It is alleged that he was a minor at the time of the transaction which was the subject-matter of the suit, and, therefore, that he is still very young and inexperienced. All his papers remained with the attorneys representing his father, and unaided he felt himself incapable of appearing before the Court and stating a somewhat complicated case on which, it appears, he now relies.
3. Having regard to all these circumstances, it appears to me that the Court may fairly say that the defendant No.2 was prevented by a sufficient cause from appearing.
4. The defendant No. 1 has also been represented upon this Rule. His position is briefly this. The plaintiff contends that should the Rule be made absolute as prayed by the defendant No. 2, then the Court should act under the proviso to Order IX, Rule 13, and restore the suit in its entirety against both the defendants; and it is the plaintiff who has brought defendant No. 1 on the record of this Rule. The defendant No. 1 strongly demurs to the Court taking any such course. He argues that when the case was tried he was present and resisted it upon certain definite grounds, that evidence was led, and that he conclusively established all those facts, which were necessary to be shown to absolve him from the liability sought to be fixed upon him by the plaintiff. If, therefore, the suit in its entirety is to be restored he will be put to the same proof over again and unfairly and unnecessarily exposed to harassment, risk and expense. In view of the nature of the defenses set up, I think that this contention must prevail. I do not see how it is affected by the fact stated by Mr. Jafferbhai that defendant No. 2 has subsequently instituted a suit against defendant No. 1 for partition, thereby affirming what he first denied that he and defendant No. 1 and the plaintiff, defendant No. 1 succeeded in so completely satisfying the Court that even the plaintiff no longer pressed the point that he was joint with defendant No. 2, that there was no partnership, and the acknowledgment upon which the plaintiff sued had not been given upon his (defendant No. 1's) authority, that, I think, should be sufficient to free him from all further risks and expenses in this litigation.
5. I shall, therefore, content myself in making the Rule absolute as prayed by defendant No. 2. The suit between the plaintiff and defendant No. 2 to be restored to the Board, the former ex parte decree being set aside. The suit to come on for trial in due course upon the merits and costs to be costs in the cause. The plaintiff to pay defendant No. 1's costs of this Rule.