Teja Singh, J.
1. This is a petition under Order 41, Rule 19, Civil P.C., for setting aside an order of a Bench of the Lahore High Court dismissing the petitioner's appeal. The respondent's counsel has raised a preliminary objection that Order 41, Rule 19, Civil P.C., has no application and the petitioner's proper remedy was by way of appeal.
2. The relevant facts were as follows: The appeal came up for hearing before the Bench on 26th May 1947. The petitioner applied for the postponement of the appeal on the ground that she had not been able to engage a counsel. The Bench ruled that there was no reasonable cause for allowing an adjournment and ordered the appeal to be fixed for the 27th, intimating to the petitioner at the same time that if she so liked she could engage and instruct a counsel during the twenty-four hours that would be at her disposal. On the 27th, when the appeal was called, Mr. Ram Lal Kapur, Advocate, appeared for the petitioner. The petitioner herself was also present. Mr. Ram Lal stated that as the record was very bulky and he had not been able to study it he could not argue the appeal. Apparently the petitioner also expressed her inability to advance any arguments in support of the appeal. Consequently, the Bench dismissed the appeal. The concluding words of their order read as follows:
On behalf of the various respondents a number of counsel have appeared.... We see no ground whatever for adjournment and as no one is prepared to argue the appeal on behalf of the appellant we dismiss it in default with costs. The appellant was present in Court yesterday as well as today.
4. The position taken up by petitioner's counsel is that though no reference is made in the order to any provision of law and it is not stated that the appeal was dismissed for default in appearance, in fact the dismissal was under Order 41, Rule 17, and consequently a petition for the re-admission of the appeal under Order 41, Rule 19 was competent. Now Sub-rule (1) of Rule 17 reads as follows:
Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.
From the words of the sub-rule it is clear that an appeal can be dismissed under it only in that case when neither the appellant is present in person nor is there any one else to put in appearance on his behalf. In the present case not only the petitioner was present herself when the appeal was called, but so was her counsel. It is urged on her behalf that since the counsel expressed his inability to argue the appeal it should be held that he, was not present for the purposes of the case.
5. Learned counsel's argument was that the case of a counsel who says that he is unable to act on his client's behalf is analogous to that of one who states that he has no instructions. In my opinion the two cases are wholly distinct from each other. The scope of the authority of a counsel who is engaged by his client to represent him in a case is limited to the instructions given to him. These instructions may be either to put in appearance on his client's behalf or to act for him. When a counsel asserts that he has no instructions, the inference is that he has no instructions even to appear on his client's behalf, so his appearance is considered as tantamount to no appearance. But when a counsel appears and states that he is not able to do a particular act, he cannot be taken to mean that he has no instructions to perform that act.
6. On the other hand, I would take him to mean that though he had been instructed to perform that act, something has happened which has disabled him from doing it, or he has otherwise failed in his duty in spite of the instructions. In any case counsel's inability to do a particular act in the conduct of the case cannot be ascribed to want of instructions unless he says so expressly. I am supported in this view by the observations made by one of the learned Judges of the Bombay High Court in Ramchandra Pandurang Naik v. Madhav Purushottam Naik 16 Bom. 23. In that case also the appellant's pleader appeared in Court and stated, that he was unprepared to argue the case. The Court treated the pleader's unpreparedness to proceed with the case as equivalent to his absence and dismissed the appeal in default. The following observations were made by Birdwood, J. regarding the lower appellate Court's order:
Section 556, Civil P.C., authorises an appellate Court to dismiss an appeal for default, if the appellant does not attend in person or by pleader. There can be an appearance by a pleader under Section 36 of the Code if the pleader has been duly appointed to act On behalf of a party. In the present case, the pleader was so appointed. If he had said that he had received no instructions, the Court could, no doubt, have held that there was no proper appearance. But that was not the case. The pleader asked for an adjournment for certain reasons. If the Court thought that those reasons were insufficient, it could have refused the adjournment.
7. In the present case too, the petitioner's counsel who appeared before the Bench at the time her appeal was called did not state that he had no instructions. On the other hand, as I have mentioned above, what he said was that he had not been able to see the record and could not, therefore, argue the appeal. Accordingly his presence could not be ignored. Apart from this, the appellant was present herself and this is an additional reason why the appeal could not be dismissed under Rule 17. It was argued that since she had engaged a counsel and the counsel alone could argue the appeal her physical presence in Court was tantamount to no presence. I am constrained to observe that there is no force in this argument either. The position of a party's recognised agent or pleader is quite different from that of the party himself. Under certain circumstances when a pleader or a recognised agent of a party refuses to do the part assigned to him, or he is unable to do so, it can be urged that his presence should be disregarded, but the same cannot be said of the party himself, even though he is unable to take any effective part in the conduct of the case. The words of Rule 17 are very clear, and if a party is present in Court when his case is called, even though he be unable to conduct it as he should, Rule 17 can have no application.
8. Last of all, learned Counsel for the applicant drew our attention to the penultimate sentence of the order of the Bench in which the words used were 'dismiss it in default' and contended that whatever be the provision of law the Bench took the vi8W that neither the applicant herself nor her counsel were virtually present and accordingly dismissed the appeal for default in appearance, and hence the order came within the purview of Rule 17. Now it may be pointed out that the words of the order are 'in default' and they do not imply default in appearance. Both the petitioner's counsel and she were present in Court. Evidently, therefore, default lay in their refusal to argue the appeal and failure to show that the decision of the Court below was liable to be set aside, but not in appearance. In this respect the facts of the present case appear to me to be similar to those of Mathura Das v. Narain Das and Ors. : AIR1940All248 , the only difference being that in that case the appellant himself was absent but his counsel was present and he expressed his inability to argue the appeal. The Court dismissed the appeal for default; and the questions before the learned Judges of the High Court were whether the dismissal was under Order 41, Rule 17, and Whether an application for restoration of the appeal could be made under Rule 19. It was argued before them that since the appellant's counsel was present and he expressed his inability to address any arguments the proper course for the Court was to dispose of the appeal on merits under Order 41, Rule 30. Bennet, J. who wrote the judgment of the Division Bench made the following observations:
The burden of proof is on an appellant to show that the decision which he appeals from was wrong and where he does not address the Court at all, of appears to us that there is no point raised for determination and it is not necessary therefore to give a decision on any point or the reasons for the decision. It is sufficient for the Court to pass an order of dismissal for default such an order does not necessarily mean that the appeal is dismissed for default of appearance. In such circumstances the order means that the appeal is dismissed for default of proof. In the actual order before us dismissing the appeal it is not stated that the appeal is dismissed for default of appearance. It is merely stated that the appeal is dismissed for default.
If I may say so with respect these observations apply with full force to the present case also.
9. The petitioner's learned Counsel drew our attention to Garpati China Basav Satyanardyana v. Hindu Religious Endowments Board Madras A.I.R. 1945 Mad. 300, a decision by Horwill, J. In that case the counsel for the appellant, who had been engaged to argue the appeal was absent and the appellant himself who was present could not argue the appeal. The Court passed an order dismissing the appeal in default. Prom this order the appellant preferred an appeal to the High Court and the argument addressed on his behalf was that the lower appellate Court should not have disposed of the appeal in a summary fashion as if the appellant had been absent but should have disposed of it on merits. After observing that it was difficult to see how a Court could satisfactorily dispose of an appeal on the merits, when there was nobody to argue the appellant's case, and further that an examination of documents and depositions by the Court itself was not likely to result in a satisfactory disposal of the appeal, this is what the learned Judge said:
The party was no doubt physically present in Court; but, as has been pointed out in many cases, the mere physical presence of a party does not mean his presence for the purpose of conducting the proceedings. He had no intention of conducting the appeal, and in fact, could not do so; for he had engaged a vakil to appear for him and had not revoked his vakalat. As the vakil who was authorized to appear for the appellant was absent, the Court was bound to treat the appeal as one in which the party was absent, and to dismiss it for default.
With all deference the dictum of the learned Judge appears to me to be contrary to the clear words of Rule 17 and I do not agree that if a party is 'present in person the mere fact that he is unable to take part in the proceedings can justify the Court in treating him as if not present.
10. For all these reasons my opinion is that the order of the Bench was not made, and in fact could not have been made, under Rule 17 of Order 41 and accordingly the remedy sought by the petitioner for the re-admission of the appeal under Rule 19 of Order 41 was misconceived. The contention that there wa3 no proper judgment as-contemplated by Rules 30 and 31 of Order 41 cannot be taken into consideration in this petition, because it relates to the merits of the order dismissing the appeal and if at all can only be raised in an appeal from the order. All that we have to decide here is whether the petition lies and for reasons given above my answer to this question is in the negative. Apart from this, as was pointed out in Mathura Das v. Narain Das and Ors. : AIR1940All248 , in the circumstances of the case the order made by the Bench was the only order that it could make. In the result I would dismiss the petition with costs.