1. These two appeals arise out of the same case in the following circumstances : On 12th January 1945, the date fixed for the hearing of the appeal, the appellant was absent. He had engaged two lawyers. They were sent for, but they refused to address arguments in the appeal saying that they had no instructions. The Court then proceeded to dismiss the appeal, with the following order:
I see no force in this appeal which the vakils for the appellant did not argue on the excuse that they have no instructions. The respondents' vakil is present. Appeal dismissed with costs.
Treating this order to be an order of dismissal for default, an application was made for the restoration of the appeal. That application was also rejected. Second Appeal No. 1007 of 1945 has been filed against the decree of the lower appellate Court dismissing the appeal itself and F.A.F.O. No. 37 of 1915 has been filed against the order refusing to restore the appeal.
2. It is obvious that both these appeals cannot succeed and at least one of them must fail. The order dated 12th January 1945 is either an order dismissing the appeal for default of appearance or an order dismissing the appeal on merits. It cannot be both. If it is an order of the former description, it does not amount to a decree and no second appeal lies from it. Second Appeal No. 1007 of 1945 should, therefore, fail. If how-ever, it is an order of the latter description, the application for the restoration of the appeal was not maintainable and F.A.F.O. No. 37 of 1945 must fail on that ground.
3. The first point for consideration is whether the order dated 12th January 1945, is an order of dismissal for default, or an order dismissing the appeal on merits. No doubt, the appellant was absent when the appeal was taken up and dismissed but his two pleaders were present. They did not say that they had withdrawn from the case, or that they had terminated their engagement with their client, or that they were not appearing in the case. All that they said was that they had no instructions.
4. Order 3, Rule 4(2). Civil P.C., enacts that the appointment of a pleader shall be deemed to be in force until determined with the leave of the Court, by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client. None of the contingencies mentioned in this rule had occurred in the case. It can not, therefore, be held that his pleaders had ceased to represent the appellant when the appeal was called on for hearing and dismissed.
5. The learned Counsel for the appellant, however, contends that the appellant should be deemed to be absent as the pleaders had stated that they had no instructions. In order to judge the merits of this contention it is necessary to comprehend clearly what was meant by the two pleaders when they said that they had no instructions, as this expression is used to convey a variety of meanings. A counsel who has been engaged only to move a miscellaneous application, such as an application for stay or adjournment in a suit or an appeal, may say that he has no instructions in the suit or the appeal. In such a case, the counsel means that he was not engaged to conduct the suit or to argue the appeal, that his engagement was a limited engagement, and that he does not represent his client, in the suit or the appeal. Sometimes this expression is used by a counsel to mean that his engagement has been terminated or that he has withdrawn from a case. A counsel is entitled to withdraw from a case, without observing the formality required by Order 3, Rule 4 (2), Civil P.C., where he has not been engaged by means of a vakalatnama as required by Order 3, Rule 4 (1). At times this expression is used to convey that the counsel has not been paid his fees. The expression is also used to convey that the client has not rendered necessary help to the counsel in preparing the case. I am, by no means, satisfied that the same consequences follow in all the different cases specified above or that it makes no difference whether a pleader has been engaged by means of a writing contemplated by Order 3, Rule 4 (1), Civil P.C., or by means of an oral agreement. The meaning of the statements of the two pleaders in this case and its consequences have, therefore, to be determined in the light of the facts of this particular case, and cases in which the various aspects set out above have not been considered, can be of no assistance.
6. The two pleaders in this case were appointed by a vakalatnama in the manner laid down in Order 3, Rule 4 (1), Civil P.C. Their appointment, not having been terminated in the manner provided for in Order 3, Rule 4 (2), Civil P.C. - the only manner in which it could be terminated - continued, and they continued to represent their client when the appeal was called on for hearing. In fact, there is positive evidence to show that the appointment of one of them, at least, that is of Babu Sripat Lal Sinha, continued even after the dismissal of the appeal, for the application for restoration was filed and argued by Mm, with-out any fresh vakalatnama. They could not, therefore, have meant when they made their statement that their engagement had been terminated or that they had not been engaged to argue the appeal. Indeed, it has never been the appellant's case that the two pleaders were not engaged to argue the appeal and had been engaged for any other limited purpose only. All that the appellant has said in his application is that the two pleaders 'Adam Pairvi Hogay,' that is, that they did not do any 'pairvai' in the case. The pleaders could thus have meant only either that their fees had not been paid or that their client had not rendered them necessary help in preparing the case which, in substance, only meant that they were unwilling to argue the appeal, either because they had not been paid or because they were not ready. If they had not been paid their fees, they might have terminated their appointment, with the leave of the Court, and this leave would have been readily forthcoming, because no Court would refuse such a permission, when the client has not kept his engagement with his pleaders. The pleaders, in this case, however, did not do this. They desired to keep the appointment and to shirk the duties of that appointment. This is perfectly clear from the judgment of the lower appellate Court wherein the learned Civil Judge observes : 'The Vakils of the appellant did not argue on the excuse that they have no instructions.'
7. I am reluctant to accept the view that a party to an appeal should be deemed to have failed to appear even though his pleader, duly appointed to argue the appeals is present in Court and, without withdrawing from the case or terminating his appointment, refuses to argue the appeal, because his fees have not been paid or because he is not properly prepared in the case. Reference may be made in this connection to the following passage to be found in Lachhmi Narain v. Shanker Lal : AIR1936All670 :
One farther point may be noted that we consider that it is not proper for counsel either in this Court or in the Courts below to merely state to the Court that they have no instructions. Learned Counsel should clearly specify what is the reason of their failing to proceed with the case. It may be that they have not received their fee, it may be that their instructions have been withdrawn or it may be some other reason. But whatever the reason is learned Counsel should clearly state it to the Court. In this case Mr. Khare had filed the pleading on behalf of Lachhmi Narain and his Vakalatnama was on the record and he had, therefore, no reason to state to the Court on a later date that he had no instructions and to attempt to limit his appearance merely to moving an application for adjournment.
8. If Mr. Khare had no reason to state that he had no instructions and to attempt to limit his appearance, the two pleaders, in the present case, equally had no reason to state that they had no instructions and to attempt to efface their appearance completely. I am, therefore, inclined to the view that the dismissal of the appeal in this case was on merits and not for default of appearance. At any rate, this is what the Court purported to do. This is evident not only from the order of the Court but also from the decree drawn up in the appeal where it is mentioned that the appeal was decided in the presence of the pleaders for the appellant.
9. If this view be correct, that the dismissal of the appeal was on merits and not for default of appearance, it is obvious that the application for restoration was not maintainable and F.A.F.O. No. 37 of 1945 should fail.
10. So far as the second appeal is concerned, it would lie. The question for consideration,) then, is what the Court should have done when the pleaders refused to argue and press the appeal. The Court below was perfectly justified, in these circumstances in dismissing the appeal on merits, on the ground that it was not pressed. When an appeal is not pressed, it is not the duty of the appellate Court to wade through the record of the case, unaided by the appellant or his pleader. A party, who does not press the appeal in the lower appellate Court, should not be allowed to urge, in a second appeal, the points raised in the appeal to the lower appellate Court. To permit him to do so would be to allow a right of appeal straight to the High Court from the judgment of the trial Court and to circumvent the provisions of law. This Court ordinarily does not allow a point to be raised for the first time in a second appeal, when it was not pressed in the first appellate Court. In this case, no ground was pressed in the lower appellate Court. I have not been able to discover anything to induce me to depart from the practice prevailing in this Court and to permit the appellant to circumvent the law, which does not permit an appeal directly to the High Court against the decision of a Munsif. Thus the second appeal also fails on this ground.
11. I shall now proceed to consider the two appeals on the assumption that the contention of the learned Counsel for the appellant is correct and that the appeal was dismissed for default. In this view the second appeal would fail on the ground that it does not lie. A second appeal lies only from a decree and an order of 'dismissal for default is not a decree.
12. The appeal from the order refusing to r6-admit the appeal would be maintainable in this view and will have to be considered on merits. So far as this appeal is concerned, its decision depends upon whether the appellant has proved that he was prevented by some sufficient cause from appearing when the appeal was called on for hearing. The Court below was not satisfied that the appellant was so prevented. Its judgment is, however, not satisfactory and does not disclose a careful and judicial consideration of the matter. I have, therefore, considered the merits of the application myself.
13. It is alleged in the application for restoration and in the affidavit filed in support of it that two weeks before the date fixed for the hearing of the appeal, the appellant had gone to Jubbulpore in connection with his business and was taken ill there, that his pairokar, Ram Shankar Lal, had to attend some other case outside Gorakhpur one day before the date fixed for the hearing of the appeal and that he got late there and so could not get a conveyance to breach him to Gorakhpur in time. The appellant did not file any affidavit himself and the affidavit filed is that of Ram Shankar Lal, who had no personal knowledge of the appellant's illness. Neither the application nor the affidavit discloses the nature of the appellant's illness, and while the application suggests, though it does not specifically state, that the illness of the appellant continued up to the date of hearing, the affidavit is silent on this point. The date for the hearing of the appeal was fixed nearly three months beforehand. There is no allegation to explain why the pleaders were not instructed in proper time and why everything was postponed to the last moment. It has been set out in the grounds of appeal filed in this Court that the case was a very complicated case. The affidavit suggests that if Ram Shankar Lal could reach in time on the day previous to the date of hearing the pleaders could be properly instructed. I fail to understand how the pleaders could have been properly prepared in such a short time in this very complicated case. I am not prepared to presume that they are briefless lawyers and that they had no other engagements on the morning of the day when the appeal was heard. It appears plain to me that the appellant having left the 'pairvi' of the appeal to Ram Shankar Lal, busied himself with his trade, without any concern for the appeal, and Ram Shankar Lal did not care to attend properly to the appeal. Be that as it may, the application does not disclose any sufficient ground, which might have prevented him from appearing, if he had taken care and if he were not negligent. In my opinion, therefore, the application for restoration was rightly dismissed, and there is no force in the appeal against the order rejecting the application for restoration.
14. It would appear from what has been stated above that in either view, that is, whether the dismissal of the appeal in the lower appellate Court be regarded to be a dismissal on merits or a dismissal for default, both the appeals fail and are accordingly dismissed with costs.