1. It is a defendants' appeal in a suit for enforcement of two mortgages executed by the father of the appellants on 13th September 1929 and 28th September 1929 for considerations of Rs. 110 and Rs. 100 respectively. The plaintiff had filed a suit previously for enforcement of the terms of the mortgages being suit No. 883 of 1940 in the Second Munsif's Court, Cuttack. That suit had been set down for hearing on 13th December 1941. There were no steps taken on behalf of the plaintiff on that date nor did either the plaintiff or his pleader respond to the call of the Court. The defendants had applied for 'time on the ground of illness, In these circumstances, the suit was dismissed for default. The order disposing of the suit reads as follows:
Defendants 2 and 3 apply fat time on the ground of illness and plaintiff takes no steps. Plaintiff and his pleader do not appear on call. The suit is dismissed for default.Defendant 1 of that suit was the executant of the mortgage bonds and has since died, and it may be noted that he did not enter into contest in the previous suit. The plaintiff of the previous suit filed an application for restoration but failed. He then took return of the bonds and filed the present suit on 12th September 1942, being a suit on the self-same cause of action. The defendants-took up the plea that the suit was barred under the provisions of Order 9, Rule 9, Civil P.C. Besides, they had taken pleas of denial of the plaintiff's right to enforce the mortgage as they were without considerations and not supported by legal necessity. The learned Munsif dismissed the plaintiff's suit holding with him on the merits; but refusing his contention that the previous suit had been dismissed for default of both parties under Order 9, Rule 3 and that he was entitled to bring a fresh suit according to the provisions of Order 9, Rule 4. The plaintiff took up an appeal and the learned lower appellate Court decreed the plaintiff's suit reversing the learned Munsif's view that the dismissal was not one for default of both' parties.
2. The learned Sub-judge has relied upon three decisions of the Patna High Court, namely, Lalji Sahu v. Lachmi Narain Singh A.I.R.1918 Pat. 351 Muhammad Bakar Ali v. Chullai Mahaton and Ors. A.I.R.1920 Pat. 589 Mahanta Damodar Das v. Raj Kumar Das A.I.R.1922 Pat. 485 and has declined to rely upon Bajit Lal Pathak v. Rameshwar Singh Bahadur A.I.R. 1928 pat. 335.
3. The only controversy that has to be adjudicated in this case is whether in the circumstances, the former suit had been dismissed for default of both parties. The answer depends upon when can a party be said to have appeared and when not, within the meaning of Order 9, Rule 8 or Order 9, Rule 3, as the case may be. Mr. Mohapatra has contended that the 'appearance' has been defined in Order 5, Rule 1(2) where it is stated that a defendant to whom a summons has been issued under Sub-rule (1) may appear either in person or by a pleader duly instructed and able to answer all material questions relating to the suit. Quite apart from the facts of the case, I am not willing to accept that this Sub-rule (2) defines the word 'appearance'. The words 'appear' or 'appearance' as they occur in several rules of Order 9 of the Code have been used with reference to the plaintiff as well as the defendant. Sub-rule (2) here talks of defendant only. That is simple reason why this cannot be said to mean the definition of the words 'appearance' or 'appear' in general. Whether a party appears in a suit or not will depend upon various circumstances and its meaning may accordingly vary. Substantially it means that when a party is ready to do something or other in relation to the progress of the suit, he shall be taken to have appeared. Mr. Mohapatra's contention is that 'appearance' must mean 'complete readiness to proceed with 'the hearing of the suit'. This is far from correct. It will all depend upon the stage of the suit and steps that are appropriate at that stage, and what is appropriate for one party may also be ascertained with reference to what the other party has done or is going to do in relation to the progress of the suit. Suppose, the defendant knows that the plaintiff is neither ready to go on with the suit nor to appear upon Court's call either by himself or by his pleader; knowing that he may simply be called upon, comes and responds, and it cannot be in that case said that he had not appeared in the suit because he had not brought his witnesses to be examined.
4. Now I shall proceed to deal with the cases relied upon by the learned lower appellate Court. What I was surprised to find was his scant courtesy to the Division Bench case of the Patna High Court in the case of Bajit Lal Pathak v. Rameshwar Singh Bahadur A.I.R. 1928 Pat. 335 in which the circumstances were almost similar to those that had happened in this case. The defendant in that case had applied for time on the ground of his not being really ready to proceed. The plaintiff, however, committed default. The Court did not deal with the application for an adjournment filed by the defendant inasmuch as the question did not arise in view of the plaintiff's non-appearance. The dismissal for default in such a case was held by their Lordships to be dismissal within the meaning of Order 9, Rule 8, Civil P.C. The Court's order in that case was as follows:
It is now 11.20 a.m. Plaintiff takes no step. Defendant applies for time. Case dismissed for default. Defendant's petition to remain on record and no order thereon is necessary.5. Mr. Mohapatra wants to distinguish the authority of this case on account of the presence of the last sentence in the above quoted order. I do not find that makes any distinction between that case and this case. In this case defendants' petition was also kept on record and no order was necessary to be passed as the Court did not even proceed to say that he dismissed the application for adjournment. If he meant that defendants also did not appear, he should have certainly rejected that petition and should have ascertained whether the defendants were thereafter ready to take some steps or other regarding the progress of the suit. The earliest case relied upon by the learned lower appellate Court is Lalji Sahu v. Lachmi Narain Singh A.I.R.1918 Pat. 351. That was a case in which the party was only physically present in Court but did not take any steps in furtherance of the suit. It was held that this amounted to non-appearance. I do not see how this is relevant to the facts of this particular case. Whether the defendants' pleader was willing to proceed with the suit so far as it was required of him in case the hearing of the suit was taken up could not at all be ascertained until he was told that the Court was not willing to grant his petition for adjournment. The defendants wanted time on the ground of illness. With regard to this circumstance it has to be kept in mind that the two defendants had a Common defence. It might be, after rejection of the petition for adjournment, they could have given still sufficient instructions to their pleader to proceed as best as he could to protect their interest in the suit. It could be done by cross examining the plaintiff's witnesses and arguing the case. It might be that the plaintiff having the onus to discharge in view of their defence and the right to begin they could have become ready after the plaintiff began. It might also be guessed that after rejection of that petition, they could have prayed for commission for examining the two sick defendants. It would be nothing but mere speculation to say that the defendants were not ready to go on with the suit so far as required by their defence had the petition for adjournment been decided against them. To accede to the contention of Mr. Mohapatra would amount to say that in a case where both parties applied for adjournment it could be construed that none of the parties were ready with the suit. When a petition for adjournment is filed, the Court is under duty bound to apply its mind to it and to dispose it of. In case he refuses the adjournment prayed for he should then call upon the parties to proceed with the suit. If the answer to this is in the negative then only he shall be entitled to come to the conclusion that the party did not appear. Appearance in certain circumstances may mean readiness to go with the suit but not always. As I have already said Lalji Sahu v. Lachmi Narain Singh A.I.R. 1918 pat. 351 is not relevant to the facta of the case. The next is the case of Muhammad Bakar Ali v. Chullai Mahaton and Ors. reported in A.I.R.1920 pat. 589. That was a case in which the order of the Court in dismissing the suit was:
The pleader for the plaintiff states that he is unable to adduce any evidence. The plaintiff is also present in Court, but does not adduce evidence in support of his case. The defendant is ready. Ordered that the suit be dismissed for default of the plaintiff.This too is hardly relevant to the present case. There is nothing on record to show that the defendants' pleader intimated the Court that he was unable to go on with his defence. The defence may be conducted without adducing any evidence whatsoever. That is the concern of the particular defendant, but I find there are certain observations in this case which are material to disabuse Mr. Mohapatra's strenuous contention that appearance should always mean readiness with evidence either documentary or oral. Mullick J. observes:
If however the plaintiff does not fail to appear but fails to produce his evidence or to perform any other act necessary for the progress of the suit, the Court may proceed to decide the suit forthwith.6. Therefore, according to that learned Judge, is party may not fail to appear though be fails 'to proceed with the evidence. According to this learned Judge, with whom I agree with very great respect, so long as a party performs any act necessary for the progress of the suit, he, does appear in the suit. To move for an adjournment is none the less necessary for the progress of the suit in the sense that not to do anything amounts to non-appearance.
7. The next case is that of Mahant Damodar Das v. Raj Kumar Das reported in A.I.R. 1922 Pat. 485. This is an extreme case on its own facts and should not have given rise to any misapprehension to the learned lower appellate Court. The proposition laid down by Sir Dawson Miller C.J.:
The mere presence of a party in Court unless he is there for the purpose of conducting his case, is not an appearance within the meaning of Civil Procedure Code nor does the presence of his pleader who has been instructed to represent him on previous occasions constitute an appearance, unless he is instructed to represent him on the occasion in question and attends for that purpose.Before closing this part of my judgment, I should express my dissent with great respect from a particular observation of their Lordships who decided case of Lalji Sahu v. Lachmi Narain Singh reported in A.I.R.1918 Pat. 351. The observation referred to is:
It could not be suggested for instance that if when a case was called on, a litigant stood up at the back of the Court and applied for a few minutes' time to bring his pleader, he would be appearing in the true meaning of the word.This is too narrow a view of the meaning of the word 'appearance.' He could be said not to appear if only after the Court refuses him that few minutes' time which he applied for, he could not contribute in any way to the further prepress of the suit. It so often happens in these Courts that a party responding to the call applies for a few minutes time to fetch his lawyer; it cannot be paid to be non-appearance of the party. In consideration of what I have said above, I am constrained to hold that the learned lower appellate Court was wrong in his view and his judgment must be set aside.
8. In the result the appeal is allowed with costs and the judgment and decree of the learned trial Court restored.