1. This is a first appeal from an order refusing to restore an appeal alleged to have been dismissed for default. The learned Judge said that the appeal was not dismissed for default of appearance and therefore the Court could not order the restoration of the appeal. The application was disallowed with costs. It appears that the appeal was argued on one date and issues were remitted. On the date when the case was again fixed for hearing after the findings had been returned counsel for the appellant did not appear. The Court adjourned the matter for a short while and was then told that counsel's brief of the case had been lost. It was also stated that counsel for the appellant was busy elsewhere and could not appear in Court. The learned Judge directed the party to engage other counsel and offered to allow him to use the record of the Court to prepare his arguments. Some time was allowed and after that when the case was called learn, ed counsel who by that time had put in his vakalatnama on behalf of the appellant said that he was unfortunately unable to prepare the case and could not therefore argue on behalf of the appellant. The Court in its order explained the circumstances and finally said : 'Nobody appears to argue this appeal. I therefore dismiss it with costs.' It seems to me that this was clearly an order dismissing the appeal for default. I think there can be only two courses. Either the Appellate Court considers the judgment from which the appeal has been made and the grounds of appeal and any arguments which may be addressed to him and decides the appeal on its merits or it refuses to consider the appeal at all because the appellant has not appeared or failed to do something which he ought to have done. Undoubtedly the learned Judge of the lower Appellate Court followed the latter course in this case.
2. It is argued on behalf of the respondent that probably the appellant was present in Court and certainly his advocate was, and that therefore it cannot be said that there was a default of appearance. I think appearance in the legal sense does not mean a mere physical presence within a certain local area or a room or anything of that kind. I think it means that a party or somebody on his behalf either expressly in words or by his conduct demands an adjudication from the Court. It is possible that a party to a suit or other proceeding might physically be present in a Court and might not make his presence known to it. In these circumstances I should certainly think that there was no appearance in the legal sense of the term. In the present case it seems that neither the appellant nor his counsel asked the Court to decide the appeal on its merits even in the absence of arguments and therefore I should say that they 'did not in the legal sense put in an appearance. There may be rules as there are in Order 17, Civil P.C., that conduct of some kind may be deemed to be an appearance, but in the absence of any such rule in Order 41 I think we must take appearance in its ordinary legal meaning. I think therefore that the learned Judge of the lower Appellate Court was not right in dismissing this application on the ground that the appeal was not dismissed for default of appearance. I think it was so dismissed and the learned Judge should consider the application on its merits. If there was no reasonable excuse for the default the application can of course be dismissed upon that ground. I set aside the order of the learned Judge of the lower Appellate Court and direct that he shall consider the application upon its merits. The costs of this appeal will abide the result.