1. The question arising for decision in this revisional application is whether a decree passed by the Court on evidence led by the plaintiff after the defendant's pleader withdrew for want of instructions is an ex parte decree or a decree on the merits. The facts of the case are that after the suit was taken from the sine die list, it was fixed for evidence on 8th September 1939. On that date the defendant and his witnesses were absent. His pleader's application for adjournment on that ground was rejected. Thereupon he withdrew from the case stating that his client had not turned up and he had no instructions. The plaintiffs' pleader then led his evidence and the Court passed a decree in their favour. Thereafter the defendant applied to have the decree set aside and the suit restored to file on the ground that he was not able to attend the Court because of his illness and his pleader had to withdraw for want of instructions after the application for adjournment was rejected. The learned Judge held that the decree was not passed ex parte but on the merits and the defendant was not, therefore, entitled to apply for setting it aside under Order 9, Rule 18, Civil P.C. On appeal, the learned District Judge held that the decree was ex parte and the defendant's application was, therefore, maintainable and should be disposed of on its merits. This revisional application is preferred against that order.
2. The point is really covered by the latest decision of our Court in Gurunath Eknath v. Laxmibai Govind : AIR1942Bom344 where the facts were almost similar and it was held that the decree passed in such circumstances was an ex parte decree. But it is contended that there is an unrepdrted decision of this Court in Goswami Sri Vallabhalalji Ranchhodji Maharaj v. Kapurchand Jerup ji O.C.J. Appeal No. 5 of 1939 in which it was held that the decree in such circumstances would be one on the merits. The facts in that case were, however, different. On the adjourned date, the defendant's counsel applied for adjournment, which being refused, the learned Judge proceeded with the suit, and counsel then left the Court. The plaintiff's evidence was heard and judgment passed in his favour. On appeal the defendant's case was that the learned Judge ought to have passed an ex parte decree so as to enable the defendant to apply to have it set aside under Order 9, Rule 13. That contention was negatived on the ground that if counsel chooses to withdraw, the Court is not bound to pass an ex parte order under Order 17, Rule 2. It did not appear that the adjournment was asked for on the ground that counsel had no instructions. Mere with-drawal from the case would not be sufficient to attract the application of Order 17, Rule 2, read with Order 9, Rule 6. The withdrawal must be on account of the pleader being not duly instructed and able to answer all material questions relating to the suit as provided in Order 5, Rule 1. That case was similar to the case in Ramchandra Pandurang Naik v. Madhav Purushottam Naik 16 Bom. 23 where the pleader applied to the Court for an adjournment on the ground that he had not time to fully prepare himself in the case. The Court refused to grant the adjournment and dismissed the appeal for default. It was held that the order of dismissal for default was bad, and that the mere fact that the pleader was not prepared to proceed with the case would not enable the Court to deal with it as if there was no appearance at all for the appellant and to dismiss the appeal for default. The decision was put on the ground that there was a distinction between a pleader refusing to conduct the proceedings because he was not able to argue the case and a pleader wishing to withdraw because he had not received any instructions. It was observed that if the pleader had stated that he had received no instructions, the Court could no doubt have held that there was no proper appearance. But as he did not withdraw on that ground, he must be deemed to have appeared on behalf of his client. The decision in Kader Khan v. Juggeswar Prasad Singh ('08) 35 Cal. 1023 on which reliance is placed on behalf of the petitioners, is also on similar facts. The defendant's counsel there did not withdraw from the case on account of want of instructions after the adjournment was refused. The adjournment was asked for to enable his witnesses to come to Court. In fact, counsel asked for a fresh opportunity to have his witnesses brought before the Court. That was also refused, and when he was asked to address the Court on the case, he stated that he wished to withdraw from the suit and did so. It was not, therefore, a case of withdrawal for want of instructions, but because he was not ready with his evidence. Such a case would fall under Rule 3 and not under Rule 2 of Order 17. There is, therefore, in our opinion, no conflict between the decision in 44 Bom. L.R. 8441 and in the unreported decision. The question as to whether the defendant's pleader can be said to have appeared depends not upon his mere presence in Court but upon whether he was duly instructed is the matter before the Court.
3. The general provisions about appearances of parties in Order 8, Rule 1 are that a party can appear in person or by a recognized agent or by a pleader appearing, applying or acting on his behalf. These are made subject to any other express provision of law. Such an express provision is in Order 5, Rule 1, where the mode of appearance by a defendant is stated to be either (a) in person, or (b) by a pleader duly instructed and able to answer all material questions relating to the suit, or (c) by a pleader accompanied by some person able to answer all such questions. The forms of summons given in forms Nos. 1 and 2 of Appx. B to Schedule 1 also contain the same instructions. Where, therefore, the defendant does not appear in person and there is none else to instruct his pleader, the only person through whom he can be said to appear is a pleader who must be duly instructed and able to answer all material questions. It follows, therefore, that if the pleader is present in Court on any day of hearing but has no instructions as to how to proceed with the ease, there is no appearance of the defendant. Whether a pleader is duly instructed is a question of fact, but if he refuses to take part in the trial on the ground that he has no instructions and then withdraws from the case either after, or without making, an application for adjournment, all further proceedings against the defendant become ex parte. If the Court thereafter asks the plaintiff to lead evidence and then passes a decree in his favour, it must be regarded as an ex parte decree. The defendant would then be at liberty to apply to set it aside under Order 9, Rule 18. If he proves to the Court's satisfaction that he was prevented by sufficient cause from appearing, i.e., either personally or by a duly instructed pleader, it would be set aside on such terms as the Court thinks fit. Instead of applying to the same Court for setting aside the decree, he may also appeal against the decree under Section 96, Sub-section (2), on the ground, among others, that he had sufficient cause for non-appearance, and that the trial Court ought to have granted an adjournment. The right of applying to set aside an ex parte decree to the same Court is presumably given on the ground that the suit could be proceeded with more expeditiously if that Court sets aside the ex parte decree on an application made soon after it was passed than if the appellate Court remands the suit on the same ground after a long time. It is for that reason that the Legislature seems to have provided the same procedure for default of appearance after hearing had commenced under Order 17, Rule 2, as would apply to default either before or at the first hearing under Order 9.
4. There may no doubt be cases where the defendant remains absent and after the refusal of adjournment his pleader withdraws on the ground of want of instructions though the real reason may be that the party is not ready with his evidence. But then if the Court proceeds to take evidence and passes a decree, the defendant will have to prove sufficient reason not only for his absence but also for not giving instructions to his pleader, so that his bona fides will have to be proved by him. In view of the express provisions of Order 5, Rule 1, it is difficult to regard the mere presence of a pleader in Court as equivalent to his appearance. The authorities are also generally in favour of this view. The decisions of our Court in Soonderlal v. Goorprasad 23 Bom. 414 and in Motilal v. Nandram A.I.R. 1924 Bom. 139 are based on the provisions of Order 5, Rule 1. The Full Bench decision of the Calcutta High Court in Satish Chandra Mukerjee v. Ahara Prasad ('07) 34 Cal. 403 and another decision of that Court in Mariannissa v. Ramkalpa Gorain 34 Cal. 235 also take the same view. In the former case Mookerjee J., one of the referring Judges, agreed with the decision of our Court in Motilal v. Nandram A.I.R. 1924 Bom. 139 that where there is a pleader physically present, who is not in a position to conduct the case, there is no representation of the defendant so as to give to the suit the character of a defended action. He further proceeded to observe that
the principle applies quite as much to a plaintiff as to a defendant, and when either party to a litigation is represented by a pleader, it is upon the assumption that the pleader is duly instructed and able to answer all material questions relating to the suit.
5. That view was accepted by the Full Bench. It would apply not only to a pleader who has been engaged only for the purpose of asking an adjournment but also to the pleader who has been engaged from the beginning but who has not received instructions at any particular stage. In the latter case, it has been held that when the pleader withdraws from the case on the ground that he had no instructions, the disposal of the suit is under Order 17, Rule 2, and not under Order 17, Rule 3. Reliance has been placed on behalf of the petitioners on a decision of the Madras High Court in Govindarajulu v. Imperial Bank of India A.I.R. 1935 Mad. 210. But in that case the pleader had appeared on the adjourned date and filed an additional written statement and also applied to the, Court to frame a fresh issue. Thereafter the pleader applied for an adjournment on the ground that his client was not able to be present on account of illness. When the Court refused the application, the pleader stated that he had no instructions. The trial of the suit, however, proceeded and a decree was passed after the plaintiff led his evidence. It was held that the act of the pleader in filing an additional written statement and in applying to the Court for the framing of a fresh issue constituted an appearance on that date, and that the matter might have been different if he had been merely instructed to apply for an adjournment. In the present case the pleader had not done anything on the day fixed except applying for an adjournment. There is, therefore, no doubt that in such a case the Madras High Court would have held that there was no appearance by the pleader. The last case relied upon by the petitioners is the Pull Bench case in Radha Mohan v. Abbas Ali : AIR1931All294 . There, on the date fixed for final disposal of the suit, the defendants appeared through a pleader who applied for an adjournment, and, on the application being refused, he withdrew from the proceedings. After the plaintiff's evidence was taken, a decree was passed against the defendants, and it was held that the decree was not an ex parte decree but on the merits. The case was, however, decided not on the words in Order 17, Rule 2, as they stand, but on an Explanation to that rule which has been added by the Allahabad High Court. The Explanation is that
no party shall be deemed to have failed to appear it he is either present or is represented in Court by an agent or pleader, though engaged only for the purpose of making an application.
6. The case was, therefore, covered by the Explanation which might be said to have changed the provisions of Order 5 Rule 1, in their application to Order 17, Rule 2. The very fact that such an explanation was thought necessary by the Allahabad High Court shows that but for it the case would have been governed by Order 5, Rule 1. That decision, therefore, not only does not govern this case, but is against the petitioners' contention. The next argument is that it is not obligatory upon the Court to pass a decree for default in case of non-appearance under Order 17, Rule 2, but that the Court has the discretion to 'make such other order as it thinks fit.' It is true that that provision might enable the Court to pass any order, i. e., either to grant further adjournment or dispose of the suit on such conditions as it might think proper. It does not, however, empower the Court to decide a suit on the merits if no evidence had been recorded before the default of appearance had taken place. If evidence is led after the default, all further proceedings would be clearly ex parte against the party making the default. In the present case no evidence had been led before the default took place, and the whole evidence on which the trial Court passed the decree was led after the default. It is, therefore, an ex parte decree, and no question arises about the Court having sufficient material to pass a decree on merits before the default took place.
7. It is lastly contended that the decree falls under Order 17, Rule 8, and not under Rule 2, because the defendant failed to produce his evidence on the adjourned date. Rule 3 would, however, apply only if the previous adjournment was granted for any of the purposes mentioned in that rule, and the party committed default in complying with it on the adjourned date. It would not apply to a general adjournment under Order 15, Rule 3, such as we have in the present case: Bukmansa Rajansa v. Shankargouda Basangouda : AIR1941Bom83 . Moreover, even in a case where a special adjournment is granted and the defendant fails to appear in person and his pleader withdraws for want of instructions, it would be a case of double default, and so far as there is default of appearance, the case would also fall under Order 17, Rule 2. That is the ratio of the decisions in Shrimant Sagajirao v. S. Smith 20 Bom. 736 and Ratanbai v. Shankar Deochand A.I.R. 1923 Bom. 27. The observations in the latter case that Rules 2 and 3 are in direct conflict with each other are not, however, correct. They are neither conflicting nor mutually exclusive. The relation between the two rules, which correspond to Sections 157 and 158, respectively, of the former Code, has been well explained in 34 Cal. 2358 as follows (p. 287):
It is obvious that the scope of Section 157 is quite distinct from that of Section 158. Section 158 appears to contemplate a case in which the Court has materials before it to enable it to proceed to a decision of the suit. As pointed out by the learned Judges of the Allahabad High Court in Sitara Begam v. Tulsi Singh 23 All. 462 what Section 158 provides is, that the mere fact of a party making default in the performance of what he was directed to do would not lead to the dismissal of the plaintiff's suit, if he was the party in default, or the decreeing of the claim against the defendant, if the defendant was the person, who made the default; the words 'notwithstanding such default' clearly imply that the Court is to proceed with the disposal of the suit in spite of the default, upon such materials as are before it. Section 157, on the other hand, speaks of the disposal of the suit, and undoubtedly includes cases in which there might not be any materials before the Court to enable it to pronounce a decision on the merits, for instance, if the event contemplated in Sections 97, 98, 99, Clause (a) and 102 happens, although, if the contingency mentioned in Section 100, Clause (a) happens, there would be materials before the Court, and a decision on the merits. It is not necessary therefore to lay much stress upon the difference in phraseology between Sections 157 and 158, one of which speaks of the disposal of the suit, and the other of the decision of the suit. It is clear, however, that the contingency contemplated in Section 157 may happen in a case which falls within the letter of Section 158. It may well happen, for instance, that a plaintiff to whom time has been granted to produce evidence, not only fails to do so, but also fails to appear. In such a case, if there are no materials on the record, the appropriate procedure to follow would be that laid down In Section 157, but if there are materials on the record, the Court ought to proceed under Section 158.
8. In the result, therefore, the decree passed by the trial Court must be held to be an ex parte decree and not a decree on the merits. it falls under Order 17, Rule 2, and the application to set it aside is maintainable under Order 9, Rule 13. The order of the lower Court is confirmed and the rule is discharged with costs.