1. This is a first appeal from order brought by Gopal Singh, one of the defendants. There was a suit brought under Section 132. Act 3 of 1926, Agra Tenancy Act, by a landowner against Gopal Singh, Bhola Singh and Gangadhar Dube as the three thekadars of a perpetual lease for Rs. 5,952, arrears of rent for the years F.1336 to 1338. There was some deficiency in court-fees, and eventually, the case was fixed for 21st April 1932, for final hearing after issues had been framed. At that time, the Court hours were apparently in the early morning, from 6 a. m., to noon, owing to the hot whether, and on the date in question the Court disposed of this case, decreeing it ex parte against all the three defendants, on the ground that they had failed to produce any evidence. On the next day, 22nd April 1932,anapplicatio;n was made by the three defendants for restoration of the case on the ground that they had been present until 12 o'clock in the day and when the presiding officer did not come to Court and they, understanding that the case would be postponed to the next day, had then gone away; and they later found that the case bad been taken up at 2 p. in. and decided ex parte against the defendants. This was supported by an affidavit of one of the defendants Gangadhar Dube to the effect that he was present in Court from 6 a. m., till noon and the presiding officer had not come during that period, and he then concluded that the presiding officer was going to take up the case next day. A counter petition was filed alleging that it had been announced on some1 date not mentioned that the case would be put up at 2 o'clock, and that the peshkar had informed the defendants', mukhtars and the defendants respectively. No evidence was produced in support of this allegation of the plaintiff. The order on the application was very brief and is as follows:
The allegation of the defendant is that he was present up to 12 o'clock and then went away. But his pleader Pandit Jaisri Tewari was present at the time of hearing the case and he refused to conduct the case. The disappearance was wilful and the case was decided on merits. There is no case for restoration. Application rejected.
2. This order proceeds on the supposition that the pleader, Jaisri Tewari, represents the defendant, and apparently by the defendant the Court intended all the defendants to be included. We have satisfied ourselves that Jaisri Tewari was not the pleader for the appellant, Gopal Singh, but he was the pleader for the other two defendants. The pleader for Gopal Singh was one Ram Sundar Dube, Accordingly, it is clear that the defendant before us, Gopal Singh, and his pleader were both absent, and therefore this is not a case which will come under Order 17, Rule 2, explanation 1 where a party is represented by an agent or pleader who is making an application before the Court. In this appeal the question has been argued, as to whether when a suit proceeds in the normal course, issues have been framed and then a date has been fixed for hearing, the finding of that date for hearing amounts to adjournment or not. On the one hand, it is argued that where the case proceeds in this manner, there is no adjournment, and on the other hand, it is argued that the mere fixing of a date for hearing of a suit is in itself an adjournment. This is a point which we do not consider necessary to decide in the present case, and we consider that whether the point is decided one way or the other, there is ample authority in the Code for the order which we are going to make.
3. Various rulings have been shown to us: Ram Charan Lal v. Raghubir Singh AIR 1923 All 551, Baldeo Singh v. Chhaju Singh AIR 1981 All 703 and Man Mohan Das v. Krishna Kant Singh : AIR1933All41 . In each of these cases there was an appearance by a pleader on behalf of the party and the making of an application for adjournment by that pleader under the explanation which has been added by this Court to Rule 2, Order 17, that appearance for a limited purpose is appearance on behalf of the party, and that therefore under that rule the party is represented in Court by that pleader, not only for the limited purpose, but for the purpose of the case; and therefore the party cannot claim to have been absent on that date. But in the present case there was no appearance at all on behalf of the appellant. As regards the other two defendants, the pleader stated that he had no instructions. This is shown on the order sheet. We consider that a distinction is to be drawn between the case of a pleader who states that he has no instructions, and the case of the pleader who states that he has instructions for a limited purpose of making an application for adjournment, etc. We consider that the case of a pleader who says he has no instructions does not come under the explanation to Rule 2 of Order 17. If we were to hold otherwise and accept the argument of the learned Counsel for the respondent, we would be holding that it was impossible for a pleader who wishes to withdraw for representing a party to do so, and we do not consider that there is any authority under this explanation to the rule or otherwise for such a proposition. Accordingly, it appears to us that the grounds on which the order of the Assistant Collector is based are unsound. That order proceeds on the erroneous assumption that Jaisri Tewari represented all the defendants, and further the order is not correct in treating him as representing any defendant when he stated that he had no instructions.
4. It was argued that we have not sufficient evidence before us to allow this appeal. But we consider that in the circumstances of the case, there is good reason for exercising a judicial discretion in favour of the appellants. The Court hours were apparently from 6 a. m., till noon, and for some reason the presiding officer was unable to attend Court during these hours on the day in question. He took up this case after these hours had passed, and disposed of this case in the absence of the defendants. In these circumstances, we consider that there was ample reason for the Court to grant the application for restoration. That application for restoration comes under Order 9, Rule 13, whether we hold that Order 9 applies as there was no adjournment or whether we hold that Order 17 applies, as Rule 2 of Order 17, states:
that the Court may proceed to dispose of the suit in one of the modes directed in that behalf by 0.9 or make such orders as it thinks fit.
5. Accordingly, we allow this appeal and we set aside the ex parte decree of the Assistant Collector as against all the three defendants acting under para. 2, Rule 13, Order 9, as regards the defendants who have not appealed. Costs hitherto incurred and the Court below will be costs in the case.