C.B. Bhargava, J.
1. The facts giving rise to this revision application are that the non-petitioner Sita Ram filed a suit for recovery of possession of a shop against the petitioners in the court of the Civil-Judge, Bhilwara on 22-10-1955.
2. The petitioners-defendants denied the plaintiff's claim, issues were framed on 17-12-1955 and the case was fixed for the plaintiff's evidence on 25-1-1956. On 25-1-1956 the following order was. passed by the learned Civil Judge:
'Plaintiff's counsel present-- Plaintiff's evidence is not present -- the suit is therefore, dismissed for want of proof and may be consigned to record'.
On the same day an application was moved by the plaintiff for restoration of the suit stating that he along with his witnesses was coming to the court but the case was called at 10.30 A. M. and dismissed. He further prayed that the statement of his witnesses might be recorded. Notice of this application was given to the petitioners and on 2-3-1956 the court set aside the order dated 25-1-1956 and restored the suit to its original stage on payment of Rs. 7/- as costs. It appears from the order sheet that the amount of costs was accepted by Shri Rajmal learned counsel for the petitioners.
3. The learned Civil Judge while allowing the restoration application observed that while dismissing the suit on 25-1-1956, he purported to act under the provisions of Order 17 Rule 2 or Order 9 Rule 8 C. P. C. although the suit was dismissed for want oE proof. It is against this order of restoration of the suit that defendants have come in revision.
4. Mr. Lodha appearing for the petitioners contends that the suit was dismissed on 25-1-1956 in the presence of the counsel for the plaintiff and as such there was no default of appearance on the part of the plaintiff and Order 9 Rule 8 or Order 17 Rule 2 C. P, C. have no application in the circumstances of the case. It is contended that the application for restoration of the suit filed by plaintiff was misconceived and the learned Civil Judge had no jurisdiction to restore it. It is argued that the appearance by counsel tantamounts to an appearance by the party himself.
5. In reply learned counsel for the non-petitioner submits that mere physical presence o the plaintiff's lawyer in the court on 25-1-1956, does not amount to an appearance on behalf of plaintiff and it should be taken as if no one was present on behalf of the plaintiff when the impugned order was recorded, as the counsel was not duly instructed. It is also submitted that the petitioners have acquiesced in the order by accepting the amount of costs and now it is not open to them to challenge it in this Court.
6. It is not disputed before me that if the plaintiffs counsel had not been present 011 25-1-1956 the order of dismissal of the suit would have been under Order 17 Rule 2 C. P. C. and not under Order 17 Rule 3 C. P. C. What is contended before me is that on 25-1-1956 the order was passed in the presence of plaintiffs counsel and not for default of appearance and the plaintiff should have filed an appeal against it.
7. The question therefore, which calls for determination is whether in the circumstances the learned Civil Judge was right in treating the order of dismissal as if it was for default of appearance. As would appear from the order in question mentioned above the learned counsel who appeared on behalf of plaintiff in the court below did neither make a request for adjournment of the Case nor report want of instructions on behalf of his clients. The learned Civil Judge also did not ask him if he had any instructions to conduct the case.
In a case where the counsel for the party is present and applies for an adjournment which being refused withdraws from the case or reports no further instructions, the position is that there is no appearance on behalf of the party. But in a case like this where though the counsel is physically present yet does not take any step for the further progress of the case and also does not withdraw or report no instructions, can it be said that there was an appearance on behalf of the party? In this connection learned counsel for the petitioners has relied upon the following cases:
Mool Raj v. Narsinghdas, ILR (1953) 3 Raj 1038; Smt, Ruprani Devi v. Christopher Southern Lewis, AIR 1949 EP 86; Abdul Gafoor v. Peerchand, AIR 1956 Bhopal 54.
8. In the first case the plaintiff's suit was dismissed for default although plaintiff himself was present in the court and his lawyer was not present. In these circumstances it was held that
'the order of dismissal for default was clearly bad and was therefore set aside'.
This case is clearly distinguishable from the facts of the present case because here the plaintiff was not present when the suit was dismissed. In the second case the appellant herself as well as her counsel were present at the time of hearing of the appeal; but the counsel for the appellant stated that as the record was very bulky and he had not been able to study it he could not argue the appeal. The court thereupon dismissed the appeal in default. It was an these circumstances observed by the learned Judges that
'The scope of the authority of a counsel who is engaged by his client to represent him in a case js 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 the 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. 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 it particular act in the conduct of the case cannot be ascribed to want of instructions unless he says so expressly'.
This case too is distinguishable as the order of dismissal of appeal was passed in the presence of the appellant as well as her counsel, and the counsel-had also been instructed to appear on behalf of the party. In the third case the day when the suit was dismissed for default party himself was absent but his pleader was present who made an application for adjournment and that application having been rejected did not withdraw from the case. Under these circumstances it was held that
'the counsel's appearance will amount to art appearance on behalf of the party as he had not withdrawn from the case nor did he make a statement that he had no further instructions from the plaintiff.'
It was further observed in this case that:
'So long as the pleader has the authority to appear or to act for his client the appearance of the former would be deemed for the party. Ordinarily a pleader would be deemed to act for his client so long as the Vakalatnama filed in the case is not determined bv another document in writing. In certain cases an oral statement by the pleader can be regarded to be sufficient for the determination of the authority given to him to appear, apply or act for the client.''
This case of course supports the contention put forward by Mr. Lodha that mere physical presence of the counsel amounts to an appearance on behalf of the party unless the counsel reports no instructions or withdraws from the case. The following discussion would show that this view is against the weight of authority.
9. On the other hand Dr. Singhvi appearingfor the non-petitioner relies upon the cases of Murlidhar v. Faqir Baksh, AIR 1925 Oudh 549, Arunachalla Goundan v. Katha Goundan, AIR 1924 Mad842 and Motilal Ratanchand v. Nandram Dalpatram,AIR 1924 Bom 139. The facts in the first case werethat when the appeal was called on for hearing, anapplication was made by the counsel on behalf of the appellants asking for adjournment on the groundthat their counsel was unable to appear that day.The court refused to allow an adjournment, and thecounsel who filed the application on behalf of theappellants stated that he was not himself in a position to argue it. The court in these circumstancespassed an order that:
'the appellant's counsel being unable to argue the appeal, I have no alternative therefore, but to dismiss the appeal with costs.'
In these circumstances it was pointed out that the mere attendance at the court of a counsel who is not prepared to argue the case does not amount to an appearance of the appellant within the meaning of Order 41, Rule 17. The dismissal of the appeal in such a case will be only a dismissal for default and no appeal will lie from such dismissal.
10. In the Madras case, in the absence of the party a vakil appeared on the date of hearing and stated that he had no instructions. It was urged before the High Court that it was necessary for the pleader to sav that he severed his connections with the case and in the absence of such a statement pleader must be held to have appeared on his client's behalf. This contention was repelled and it was held that:
'though the provisions of Order 5, Rule 1, Sub-clause (2) in terms only apply to a defendant the same rule applies also to the plaintiff and the mere attendance of the pleader who for want of instructions is unable to answer all material questions relating to the salt is not an appearance on behalf of his client.'
It was further observed that:
'I do not think any set form of words is necessary to convey to the Court the information that he has ceased to appear and that he, in fact, does not appear for his client. There is no magic in, the words 'I have ceased my connection with the case.' In my opinion the mere attendance of a pleader who for want of instructions, is unable to answer all material questions relating to the suit, is not an appearance on behalf of his client.'
11. In the Bombay case an order decreeing the plaintiff's suit was passed in circumstances almost similar to that of this case. When the case was called on 7th September, 1921 for hearing the defendant was absent but his pleader was present in the court. The pleader did not ask the court to adjourn the case nor did he state to the court whether He had any instructions to go on with the case, but in fact he took no part in the conduct of the suit.
Plaintiff's evidence was recorded and the court proceeded to give judgment and passed a decree in favour of the plaintiff. It was also stated in the judgment that the defendant does not appear to contest the suit. Thereafter the defendant treating the decree as ex parte one filed an application for setting it aside alleging that he was not represented by his pleader because he had not proper instructions. In these circumstances it was held that:
'Where the pleader is not duly instructed, the hearing of the case would be ex parte, even though the pleader was present in Court, and the case was sent back to the trial court for making an enquiry as to whether the pleader was duly instructed.'
12. Besides the above decision there are several other decisions in which a similar view has been taken and it would be useful to mention some of them. In Mt. Gunada Kumari v. Mt. Basanti Kumari, AIR 1953 Assam 91, an advocate for the party was present at the hearing but was not ready to go on with the case. An adjournment was sought on account of the absence of the witnesses, but was refused and the suit was dismissed for plaintiff's default. The order of the court did not show that after the refusal of adjournment the plaintiff's advocate retired from the case. In these circumstances it was observed that:
'even if the plaintiff's advocate did not physically retire, the indication that he was not ready to proceed with the case was tantamount to his absence for purposes of the proceedings. An advocate who is not ready to proceed with the case cannot be treated as representing the plaintiff.'
and the learned Judge held that
'the order of the court dismissing the suit for default was correct'.
In Shibendra Narain Chowdhuri v. Kinoo Ram Dass, ILR 12 Cal 605 it was held following the decision in Buldeo Misser v. Ahmed Hossein, 15 Suth WR 143 that when an appeal is called on and the pleader is not absent, but is unprepared to go on with the case, the dismissal is a dismissal for default and can be readmitted. In Soonderlal v. Gourprasad, ILR 23 Bom 414, Strachev, J. observed during the course of the judgment that
'Next, take the case in which, the party being absent, an application for adjournment is made on his behalf by a pleader who has no other instructions, and whose functions are at an end when the adjournment is refused. In such a case, has the party appeared within the meaning of Chapter VII? I think that he has not. Such of the requirements of the summons as relate to appearance have not been complied with. Appearance by a pleader within the meaning of the Chapter does not, like appearance by a party in person, mean mere presence in Court: it means appearance by a pleader duly instructed and able to answer all material questions relating to the suit'. In the case supposed, the pleader is not 'duly instructed,' or instructed at all in the suit: he is instructed only to apply for an adjourmnent. He is not 'able to answer all material question relating to the suit': he knows nothing about such questions. So far as appearance by a pleader is concerned, Chapter VII, read in the light of Section 64 and Form No. 117, does, in my opinion, 'draw a distinction between appearances' and contemplates appearance by a pleader only if he is duly instructed and able as described'.
In Satishchandra Mukherjee v. Ahara Prasad Mukerjee, ILR 34 Cal 403 (FB), Mookerjee, J. one of the referring Judges with whom the Full Bench agreed, observed that
'this principle applies quite as much to a plaintiff as to a defendant, and when either party to a litigation is represented by a pleader, it is upon the assumption that the pleader is duly instructed and able to answer all material questions relating to the suit. If, therefore the mere physical appearance of the pleader was treated as appearance within the meaning of the Code, the policy of the law and the course of justice would both be defeated'.
In Basalingappa Kushappa v. Shidramappa Irappa, AIR 1943 Bom 321 (FB), it was observed that in view of the express provisions of Order 5 rule 1 it is difficult to record the mere presence of a pleader in court as equivalent to his appearance.
13. An examination of the aforesaid decisions would show there is a preponderance of authority for the view that the mere physical presence of the counsel in the court would not in all circumstances amount to an appearance of the party himself. In view of the provisions of Order 3 Rule 1 and Order 3 Rule 4, appearance of the counsel is tantamount to an appearance of the party; but if the counsel whether he be appearing for the defendant or the plaintiff is not duly instructed to proceed with the case his physical appearance alone would not amount to an appearance of the party.
Whether the counsel is duly instructed or not is a question of fact which may either be determined on the basis of the evidence on record or may be inferred from the conduct of the counsel at the time of hearing of the suit. Where a counsel though physically present in the court neither acts nor pleads on behalf of his client and remains a silent spectator of what is done by the court without in any way participating in its proceedings, it would be quite reasonable to infer in such circumstances that he was not duly instructed by his client.
It is important to bear in mind that while drawing such an inference due regard should be given to the purpose for which the appearance was required on that particular date of hearing. As observed by Mukerjee, J. in Satishchandra Mukerjee's case, ILR 34 Cal 403 (FB), that 'the term 'appearance' is nowhere defined in the Code and as pointed out by Benson, J. in Seeley v. Evans, (1838) 19 Wendell (N. Y.) 459 'the word must always be understood in reference to the particular subject matter to which it relates and the purpose or end to be answered by the appearance has an important bearing in determining what is sufficient to constitute appearance in a particular case.'
14. Applying these principles to the facts of the present case it is clear that although the counsel for the plaintiff was physically present in the court on 25th January, 1956, yet he did not take part at all in the proceedings and remained a silent spectator of what the court did in the case. It is further clear that the case was fixed for plaintiff's evidence on that date and as neither the plaintiff nor his witnesses had come to the court when the case was called the learned counsel could not have done anything else than to request for an adjournment of the case.
In these circumstances I am of the opinion that it should be inferred that the plaintiff's counsel was not duly instructed and his presence did not amount to an appearance on behalf of the party. Furthermore the learned Civil Judge himself while allowing the restoration application treated the order of 25th January, 1956 as if it was passed under the provisions of Order 9, Rule 8 C. P. C. or Order 17, Rule 2 That also shows that the physical presence was not taken cognisance of by him. In the circumstances it cannot, therefore, be said that the order of the learned Civil Judge is without jurisdiction. No interference with the order of the learned Civil Judge is called for.
15. This revision application is therefore, dismissed. In the circumstances of the case parties shall bear their own costs of this revision.