1. This a plaintiff's appeal arising out of a suit on the basis of a mortgage-deed. The plaintiff was a minor and the suit was instituted by his mother acting as his next friend. After the issues had been framed, the 14th of April, 1926, was fixed for the filing of a list of witnesses, but on that date the suit was transferred to the Court of another Munsif, who fixed the 10th of May, 1926, for final decision. When the case was called on for hearing on that date an application signed by the next friend's mukhtar-i-am and countersigned by the plaintiff's Pleader was filed in the Court praying for an adjournment on the ground that the mukhtar-i-am bad been continuously ill for about a month and had not been able to summon the witnesses. The learned Munsif thought that this ground was a mere lame excuse and rejected the application. After that order that plaintiff's Pleader stated that he had no instructions to proceed with the case other than to file the aforesaid application for adjournment. After this statement of the Pleader the Court passed the following order:
The plaintiff is absent and his Pleader has no instructions. Ordered that the suit be dismissed for default and with costs, if any.
2. Instead of filing an application to have the suit restored, the plaintiff was advised to file an appeal before the District Judge. The appeal was filed on the 9th of June, 1926, which would be just within 30 days of the dismissal of the suit. The learned District Judge has dismissed the appeal holding that no appeal lay to him, inasmuch as the order was one of dismissal for default and did not amount to a decree. A second appeal has been preferred to this Court challenging this view.
3. The order was passed by the learned Munsif at a time when the explanation added to Order XVII, Rule 3 by this High Court did not exist. Under the law as it then stood it was quite obvious that if the Pleader after the rejection of the application for adjournment withdrew from the case, stating that he had no further instruction to proceed with it, there was really no appearance of the plaintiff by a Pleader duly instructed and enabled to answer all material questions relating to the suit within the meaning of Order V, Rule 1(2b). The learned Munsif himself treated the proceedings as on default of appearance and passed his order accordingly. We are unable to hold that the view taken by him and the Appellate Court about these proceedings was in any way wrong.
4. It was argued before the lower Appellate Court and the same point has been pressed before us here that the mukhtar-i-am was present in the Court room. There is no justification for this assumption, and as pointed out by the learned Judge there is no material on the record to suggest that he was so present at the time when the order was passed by the Munsif. The mere fact that the application for adjournment bears his signature also does not prove his presence in the Court room. There was accordingly no appearance by a Pleader accompanied by some person able to answer all such questions within the meaning of Sub-clause 3 of the above quoted rule.
5. That this was the view held by this Court is clear from the cases of Rukam v. Tara Chand 65 Ind. Cas. 775 : 20 A.L.J. 123 : A.I.R. 1922 All. 68 and Krishna Dass v. Ram Ugrah Singh 74 Ind. Cas. 845 : 21 A.L.J. 500 : A.I.R. 1923 All. 549, The order passed by the learned Munsif was accordingly an order of dismissal for default and did not amount to a decree. No appeal, therefore, lay to the Court.
6. If the allegation on behalf of the plaintiff that the omission to summon the witnesses had been caused by the continuous illness of the mukhtar-i-am for a month preceding the date of hearing were proved it was very unfortunate that the application for adjournment was not granted on some appropriate order as to payment of costs. The suit was brought on behalf of a minor and was based on a registered document, and the date fixed for hearing was the first date in the Court, of the Second Munsif to whose Court the suit had been transferred. In filing the appeal the minor's next friend appears to have been led away, by the wrong advice given, that an appeal would lie and that the remedy was not by an application for restoration.
7. The appeal is accordingly dismissed with costs including in this Court fees on the higher.