1. This is an application by Messrs. Chandra Stores, Ajmer, appellant in D. B. Civil First Appeal No. 46 of 1956, under Order 41 Rule 19 of the Code of Civil Procedure, praying for the setting aside of our order of the dismissal dated the 20th September, 1963, and for its readmission to hearing on the merits.
2. The material facts are these. The appeal was last fixed for hearing in this Court on the 20th September, 1963. This appeal was originally filed in the court of the Judicial Commissioner, Ajmer, and was transferred to the Jaipur Bench of this Court in November, 1956, on the merger of the erstwhile State of Ajmer into the State of Rajasthan under the States Reorganisation Act, 1956. Shri Mukat Behari Lal Bhargava put in his Vakalatnama on behalf of the appel-Iant in the court of the Judicial Commissioner, Ajmer, which bears no date, and presumably it was filed along with the memorandum of appeal 'in that court on the 26th February, 1955. On the 31st December, 1956, after the case was transferred to the Bench of this Court at Jaipur, the appellant also engaged Sri J. P. Jain an advocate then practising at Jaipur. The appeal was complete for hearing on the 4th November, 1957, and it was entered to be listed for hearing for the 21st February, 1958. It was then adjourned to the 8th May, 1958 and the 2nd August, 1958. On the last mentioned date, Sri J. P. Jain appeared for the appellant.
Meanwhile the Jaipur Bench was abolished and the case was transfer to the seat of the High Court at Jodhpur, and on the 12th August, 1958, the case was fixed for hearing on the 7th October, 1958, and a direc-tion was given that the parties be informed accordingly. In pursuance of this, it appears that a notice under postal certificate was sent to Sri J. P. Jain on the 19th September, 1958. The appellant Vishnu Chandra, a partner of the appellant firm made an application for adjournment of the case, and thereafter the case came up for hearing in court on the 13th November, 1962, and the 12th February, 1963, but nothing substantial was done, and eventually the appeal was notified for hearing on the 19th September, 1963. It was not reached on that date, and, therefore, it came up before us on the following day, that is, the 20th September, 1963. On that date, Sri M. B. I. Bhargava was not present. The other counsel for the appellant Shri J. P. Jain stated that he was unable to argue the case because he was not in possession of the papers and therefore prayed for an adjournment. No reason was assigned before us as to the absence of Shri M. B. L. Bhargava. In these circumstances, by an order dated the 20th September, 1963, of which the following is the operative part, we dismissed the appeal for want of prosecution:
'This is an old appeal and it should have been the duty of learned counsel incharge of the case to appear and argue it, and, if not, to make alternative arrangements, the more so as there was a second counsel in the case. We are not prepared to adjourn 1956 appeals for the mere asking.
There is no one before us to argue the case. This appeal is, therefore, dismissed for want of prosecution, There will be no order as to costs in this Court.'
It is this order which is sought to be set aside.
3. In his application for restoration, it is stated by the petitioner Vishnu Chandra that Shri M. B. L. Bhar-gava was in complete charge of the appeal from the time it was filed on the 26th February, 1955, upto the 20th) September, 1963, the data on which it was dismissed, and that on appeal being transferred to the Bench of this Court at Jaipur, Shri J. P. Jain who was then normally practising at Jaipur had also been engaged by him
'to look after the routine work in the High Court to connection with the said appeal, but all along it was understood that the appeal will be argued by Shri M. B. L. Bhargava alone,'
and that on the abolition of the Jaipur Bench and on transfer of the appeal to the High Court at Jodhour, Shri Bhargava continued to be in exclusive charge of the appeal as he had established a regular office at Jodhpur. It is further stated that m the middle of September, that is, about the 14th, Shri Bhargava had gone to Delhi for attending the Parliament of which he was a member and that on the 18th September, 1963, while he was there, he had a suddtfn attack of dysentery and yet he left Delhi on the night of the 18th September and reached Ajmer on the morning of the 19th September, 1963, with the intention of attending his cases at Jodhpur on the 19th and 20th September, 1963.
On the 19th September, 1963, he was informed by his clerk Bhanwarlal that the appeal was listed in the daily cause-list for the 20th September and, therefore, he should reach Jodhpur on the morning of the 20th September before the court hours. Shri Bhargava then decided that he would leave for Jodhpur by his own car on the 20th September, 1963, at 5 or 6 A. M. so as to reach Jodhpur in time; but it is alleged that his dysentery trouble became very acute and he was not at all in a fit condition to undertake a long journey in that state of his health. On the morning of the 20th, he tried to contact his clerk but that was not possible before 12-30 P. M. when he was informed on the phone that the ap- peal had been dismissed for want of prosecution. It is the petitioner's further case that Shri Bhargava had assured him that the former need not appear personally on the various dates of hearing, and, therefore, he did not think it necessary to put in appearance in court on the 20th September, 1963.
As for Shri Jain, the petitioner's case is that he had been only engaged for looking after the routine work con- nected with the appeal in question and that at no time he had been given any papers or instructions, and, therefore, it was not possible for him to argue the appeal. And so far as Shri Bhargava is concerned, it is submitted that he was the only counsel in charge of the case, and, therefore, as he had unexpectedly fallen ill, there (was sufficient cause far his unforeseen absence and consequently the order of dismissal which amounts to an order of dismissal for default of appearance, be set aside under Order 41 Rule 19 C. P. C. It is further submitted that if the Court comes to the conclusion that the present application does not fall within the purview of Order 41 Rule 19 C. P. C., then the Court be pleased to review its order in the exercise of its inherent powers under the provisions of Order 47 and Section 151 C. P. C. In support of this application, the petitioner Vishnu Chandra has filed his own affidavit and he has filed another affidavit by his counsel Shri M. B. L. Bhargava. These affidavits substantially support the averments made in the application for restoration which we have already set out above. No application or counter affidavit has been filed on the other side.
4. At the hearing of the application, however, learned counsel for the respondent strongly opposed the application, his principal contention being that the order of this Court did not in reality amount to an order of dismissal for default in appearance under Order 41 Rule 17 C. P. C. and consequently no application under Order 41 Rule 19 was maintainable. It was also contended on the merits that Shri Bhargava could have informed the court if he had been a little more vigilant of his inability to appear on the very date of the bearing, that is the 20th Sep- tember, 1963, or at least arranged to send his client down to Jodhpur who could have been present at the hearing. Furthermore, it was contended that the submission that Shri J. P. Jain had been engaged only to attend to the routine work in connection with the appeal should not be accepted in the absence of an affidavit from 3hri J. P. Jain, and in view of the contents of his own Vakalat-nama on the record. It was, therefore, urged on the merits of the application that there was no sufficient cause for setting aside the order of dismissal and further that there was no warrant nor any occasion for invoking the inherent powers of the Court whether by way of review or otherwise in all the circumstances of the case.
5. Having regard to the contentions raised before us, the following questions arise for decision :-
(1) Whether our order dated the 20th September, 1963, is virtually an order of dismissal 6f the appeal for default of appearance under Order 41 Rule 17 C. P. C. and whether an application for setting it aside under Order 41 Rule 19 is maintainable?
(2) Whether there is sufficient cause for setting the dismissal aside within the meaning of Order 41 Rule 19 C. P. C.,
(3) If the answer to the first two questions set out above is in the negative, whether the present application is maintainable under the provisions of Order 47 or Section 151 C. P. C. ?
(4) If the answer to the first two questions set out above is in the affirmative, on what terms, if any, should our order of dismissal be set aside?
We propose now to address ourselves to these questions in the order in which we have set them out above. No. 1:
6. It was strenuously contended before us on behalf of the respondent that our order dated the 20th September, 1963, was not an order of dismissal for default of appearance but was one for default of proof, and consequently it is argued that it did not fall within the four walls of Order 41 Rule 17, and if that was so, the present application under Order 41 Rule 19 was altogether untenable, In support of his submission, learned counsel placed strong reliance on Mathura Das v. Narain Das, AIR 1940 All 248, Sm. Ruprani Devi v. Christopher Southern Lewis, AIR 1949 EP 86 and Sukhpal Singh v. Kalyan Singh, AIR 1953 SC 146.
7. But before we deal with these cases, we wish to deal with the matter on first principles. This Is a case at the hearing of which the appellant himself was not present and Shri Bhargava the counsel who is said to be in exclusive charge of the case was also absent. In other words, he also failed to appear. As for the second counsel Shri J. P. Jain, the petition seems to us to be that he appeared to apply for the adjournment but when that prayer was not acceded to and he was asked to argue the case, he stated that he was not in possession of the papers, and, therefore, was unable to argue it. There can be no doubt that it is a case of failure to put in appearance on the part of the appellant and Shri M. B. L. Bhargava, the counsel in charge of the case. To this extent, our order undoubtedly falls within the purview of Order 41 Rule 17 C. P. C., and we have no doubt whatsoever about the correct legal position.
8. The only further complication that arises in the case is that there was a second counsel also and can it also be said under the circumstances that his physical appearance did not amount to an appearance within the meaning of Order 41 Rule 17 C. P. C.
9. Now, the word 'appearance' has not been defined in the Code of Civil Procedure. Broadly speaking, the appearance of the pleader of a party is equivalent to the appearance of the party himself so long as his Vakalat-nama is not determined. See Order 3 Rule 1 C. P. C. But it seems to as that the Code makes a vital distinction between appearance on the part of a party and appear- ance an the part of counsel on his behalf. So far as the party himself is concerned, his mere presence at the hearing is sufficient to constitute 'appearance', and it is immaterial whether he appears for a limited pur-pose or otherwise. The fact that he is present in court at the time of the hearing would, therefore, be sufficient to take the case out of the purview of Order 41 Rule 17 C. P. C. or a like provision. Where a party however does not appear himself but appears through a pleader, the mere presence of the pleader would not amount to an appearance in the legal sense of the word unless he is duly instructed and able to answer ail material questions relating to the suit or the appeal.
We would invite attention in this connection to the provision contained in Order 5 Rule 1 Sub-rule (2) which lays down that
'A defendant to whom a summons has been issued under Sub-rule (1) may appear--
(a) in person, or
(b) by a pleader duly instructed and able to answer all material questions relating to the suit, or
(c) by a pleader accompanied by some person able to answer all such questions.'
It is true that there is no specific provision to like effect in the case of a plaintiff; but there is ample authority for holding that the principle of Order 5 Rule 1 Sub-rule (2) applies also to the case of a plaintiff appearing by a pleader. See Soonderlal v. Goorprasad, ILR 23 Bom 414, Satish Chandra Mukherjee v. Apara Prasad Mukherjee, ILR 34 Cal 403 (FB) and Arunachela Goundan v. Katha Goundan, AIR 1924 Mad 842.
10. The correct position in law, therefore, seems to us to be that the mere physical appearance of a pleader who, for want 'of papers or instructions, is unable to answer all material questions relating to the suit or the appeal, cannot be accepted as appearance on behalf of his client. Therefore, when Shri J. P. Jain appeared before us only to ask for an adjournment and when called upon to argue the appeal, he expressed his inability to do so because he had not received any papers from his client, his mere physical presence in court did not amount to appearance on behalf of the petitioner. The matter might have been different if without saying that he had no papers which was another way of saying that he had no instructions to proceed with the appeal, he had simply asked for an adjournment on the ground that he was not prepared to argue the appeal. But that was not the case here, and, therefore, the correct legal position appears to us to be, even so far as Shri J. P. lain is concerned, that his mere physical presence at the hearing of the appeal did not amount to 'appearance' at the hearing within the meaning of Order 41 Rule 17 C. P. C. In other words, his presence was no appearance at all:
11. If that is the correct conclusion to come to in toe circumstances of the case on general principles, as we think it is, it must follow that our order of the 20thSeptember, 1963, substantially falls within the scopeof Order 41 Rule 17 C. P. C. Thus it was held as early as1907 by the Full Bench of the Calcutta High Court in ILR 34 Cal 403 (Supra) that an application by a counsel who isinstructed only to apply for an adjournment, which isrefused, is not an 'appearance' within the meaning of theCode of Civil Procedure and that when in such circumstances an appeal is dismissed, the dismissal is one fordefault under Section 556 of the Code of Civil Procedure,entitling the appellant to apply for re-admission under Section 558 of the Code. It may be pointed out that thecorresponding provisions of Sees. 556 and 558 of theCode of 1882 are Order 41 Rule 17 and Order 41 Rule 19 respectively of the present Code. To the same effect arethe decisions in V. Manickam v. Mahudum Bathummal,AIR 1925 Mad 21 (FB), Maung Pway v. Saya Pe, AIR 1327Rang. 46, Allah Bux v. Budha, AIR 1939 All 451, Balireddiv. Lakshmamma, AIR 1943 Mad 728 and Mt.Gunada v.Mt. Basanti, AIR 1953 Assam 91, and these decisionsare enough to show that there is an overwhelming preponderance of judicial opinion in favour of the view whichappeals to us as correct.
12. This brings us to the cases on which learned counsel for the respondent strongly relied in support of his submission. The first case is AIR 1940 All 248 (Supra). The facts in that case were these. The appellant and his pleader were both present in court on the date of the hearing, but neither of them was prepared to address the Court. The appeal was, therefore, dismissed for default and the court did not give any decision on any point reflating to the merits of the appeal. It was held that the order dismissing the appeal for default in such a case did not mean that the appeal was dismissed for default of appearance but that it was dismissed for default of proof and that such a case did not fall under Order 41 Rule 17 and, therefore, no application for restoration lay. It seems to us to have been clearly held in this case that dismissal could not have been ordered under Rule 17 because the appellant was himself present. It was then argued that, in the case of an appearance by an appellant who is not prepared to argue the appeal, the appellate court should have gone into the merits of the appeal and drawn up a judgment in accordance with Order 41 Rule 31 C. P. C. even though no argument whatever had been addressed to it. This plea was repelled, and if we may say so with all respect, oer-fectly correctly.
This case, therefore, cannot be construed as an authority for the proposition that an order of dismissal for default of appearance could not be passed in a case where the appellant was himself absent and the counsel in charge of the case was also absent and the presence of the second counsel who appeared did not amount to a legal appearance in Court.
13. The same remains more or less apply to the case of AIR 1949 EP 86 (Supra), as in that case also the appellant was present in court at the time of the hearing and, therefore, it was held that Order 41 Rule 17 C. P. C. was not attracted into application, for the simple reason that the party was present in court and that the fact that she was unable to conduct her case made no difference to her presence. In this case, however, the counsel merely stated that he was not prepared to argue the case and not that he had no instructions to argue it. In these circumstances, it was held that his presence could not be ignored. Under the circumstances, the learned Judges drew a distinction between the case of a counsel who merely said that he was unable to proceed on his client's behalf from that of the one who said that he had no instructions.
In the latter case it was pointed out that the inference was that he had no instructions even to appear on his client's behalf, and, therefore, his appearance amounted to no appearance, while, in the former case, the correct inference to be drawn was stated to be that he must be taken to mean that although he had been instructed to proceed with the case, something had happened which had prevented him from doing it, or, in other words, he had failed in his duty in spite of instructions. Even judging the present case by this test, we find it extremely difficult to hold that Shri J. p. Jain failed to perform any duty in spite of instructions given to him. This case, therefore, does not afford any assistance to the respondent.
14. The facts of the case before the Supreme Court in AIR 1963 SC 146 (Supra) were these. The appellant's appeal came for hearing before the High Court on January 4, 1955. Learned counsel for the appellant stated that he had no instructions to represent the appellant. The appel-lant did not deny this fact. His application for adjournment was rejected. The appellant was not prepared to address the Court. The High Court, therefore, dismissed the appeal for default with costs and in doing so relied on AIR 1940 All 248 (Supra). The contention raised by the appellant before the Supreme Court was that the High Court had no power to decide the appeal fixed for final hearing without considering the proceedings of the trial Court and the memorandum of appeal before it and that the right of the appellant to have, the case decided on merits on the material before the Court was not dependent on his addressing the Court. This contention was repelled and it was held that the appellate Court was not bound to decide an appeal on merits when the appellant appeared at the hearing but did not address the Court, and that it was open to the Court to dismiss the appeal for default.
In coming to the conclusion to which they did, their Lordships approved the decision of the Allahabad High Court in AIR 1940 All 248 (Supra), wherein it was held that in such circumstances it was sufficient for the Court to pass an order of dismissal for default which did not necessarily mean that the appeal was dismissed for default of appearance but would mean that it was dismissed for default of proof. It will be observed that in this case also the appellant was present before the High Court at the time of the hearing and that being so, the applicability of Order 41, Rule 17 was obviously ruled out.
15. None of these cases, in our opinion, adversely affects the conclusion to which we have come above, namely, that the order passed by us on the 20th September, 1963, virtually amounted to an order dismissing the appeal for default, and, therefore, it fell within the four walls of Order 41, Rule 17, C. P. C., and it must inevitably follow therefrom that an application for setting aside an order under Order 41, Rule 19 is perfectly competent. No. 2:
16. As to the sufficiency of cause for setting aside the order of dismissal, the precise position may be stated as follows. In a case like this, it is the accepted view of this Court that broadly speaking it is the absence of the counsel which has to be sufficiently accounted for, and the party need not be at pains to explain his own absence. This question came up for consideration in Sohan Lal v. Deva Chand, ILR (1956) 6 Raj 926 : (AIR 1957 Raj 11), to which one of us was a party and the law was laid down as under:
'The position, therefore, amounts to this that a party when he has engaged counsel by a proper writing and has briefed him for the case, the latter is perfectly competent in law to represent the party in Court and act and plead on his behalf and the personal appearance of the party is not necessary and cannot be insisted upon unless by virtue of a specific provision of law the Court calls upon the party to appear personally. But apart from such a special requirement, a party can always properly arrange for his representation in Court by a member of the legal profession duly appointed, remunerated and instructed by him and can legitimately count on such appearance in Court on his behalf. We also wish to emphasise that where counsel appears on behalf of his party and the latter is absent, it would be entirely wrong to dismiss the suit or appeal for default unless, as we have pointed out already, counsel states that he has no instructions from his client. Now, it may be desirable for a party particularly in the case of an original action, many a time to be present in Court, but that is in its ultimate analysis a matter between him and his counsel, and it may turn out that due to the absence of the party, counsel may not be able to proceed with the case and if in such an eventuality the suit is dismissed, such dismissal cannot be under Order 9, Rule 8, but will have to be for lack of proof or some such other cause.
That being the position in law, we are of opinion that where counsel has failed to put in appearance on the date of hearing for some reason and the suit has been dismissed for his default, what is reasonably necessary to be done as a condition precedent to the restoration of the suit or appeal is that he should satisfy the Court that there was sufficient cause for his non-appearance when the suit or appeal was called for hearing. We are further of opinion that the party concerned whether he be plaintiff or defendant or appellant or respondent who has already arranged for his due representation in Court through a duly instructed pleader, need not be called upon also to assign sufficient reason for his own absence at the hearing, the reason being that the party has made all reasonable arrangements for his representation in Court, and he should not stand to be penalised for his own absence in such circumstances. It further, follows from what we have laid down above that the position would be materially changed where counsel pleads 'no instructions' in a particular case and the suit or appeal is dismissed for default, and in such a case it must necessarily be for the party himself to satisfy the Court that there was sufficient cause for his own non-appearance in Court. We wish to add that if the case of a party could not have been dismissed for default in the presence of his counsel and it is so dismissed owing to the absence of counsel at a certain hearing, it would be unreasonable for the purposes of restoration to require satisfactory explanation not only as to the non-appearance of the erring counsel but also of the party who had in the normal course of things, and rightly, pinned faith on his counsel appearing for him but for some unfortunate reason, counsel was unable to do so.'
We respectfully agree with this view and should only like to add that the observations extracted above, in so far as they have been made in relation to a suit apply with greater force to the case of an appeal where, as a rule, the presence of a party at the hearing is more or less entirely unnecessary. It is, therefore, of no consequence that the appellant himself was absent at the date of the hearing and no explanation therefore is really called for so far as his absence is concerned.
17. Now so far as the Inability of Shri Jain to argue his case is concerned, it seems to us to be sufficiently explained by the circumstance that there is an affidavit both on the part of the appellant and of Shri Bhargava that the latter alone was in exclusive charge of the case right from the institution of the appeal up to the date on which the appeal was dismissed, and that it was throughout intended that he alone should argue the appeal. Shri Jain himself stated before us that he did not have any papers relating to the appeal with him. Where there are two counsel engaged in the case and both of them are senior counsel, it may be desirable for both of them to have separate briefs so that if one counsel by any chance falls ill or is otherwise unable to proceed with the case, the other can conveniently take his place and proceed with the case. Otherwise, it seems to us that the engagement of two senior counsel in a case loses much of its meaning and is likely to create complications which it may be the duty of both the client and counsel to avoid. But, be that as it may, if the arrangement between the client and the two counsel is that it is only the one and the senior of them who is to argue the case and the other is to look to what may be merely subsidiary or routine proceedings in the case, we cannot say that the failure of the latter counsel, who is present to argue the case is not sufficiently accounted for.
It was stressed before us that Shri J. P. Jain had not filed any affidavit of his own in this connection, and an adverse criticism was made on his failure to do so. In this connection we should like to point out that it would have been certainly desirable for an affidavit from Shri Jain also to have been brought on the record. But as the petitioner who was the appellant in the case and Shri Bhargava have sworn separate affidavits to that very effect, and there is no counter-affidavit on the other side, we do not think that we would be justified in rejecting the version put forward in these affidavits.
18. This leaves us with the question as to whether the absence of Shri Bhargava has been sufficiently ac- counted for. We have already set out the circumstances at some length which prevented him from putting in his appearance in Court on the 20th September, 1963, and as the version put forward as to his own illness has not been disputed, we hold that there was sufficient reason for his failure to appear at the hearing of the appeal, 'sufficient' within the meaning of Order 41, Rule 19, C. P. C. No. 3 :
19. As our answer to the first two questions is in favour of the petitioner, it is unnecessary for us to deal with this point.
No. 4 :
20. The only further question Is whether we should impose any terms in all the circumstances of the case on the appellant petitioner before his appeal is re-admitted to heating. Order 41, Rule 19, C. P. C. clearly lays down that where it is proved that there was sufficient cause for the appellant's failure to appear when the appeal was called on for hearing, the Court shall readmit the appeal on such terms as to costs or otherwise as it thinks fit. It seems to us that it should have been possible for the appellant or Shri Bhargava to have shown greater vigilance in the matter of the conduct of this case, the more so, as there was a senior second counsel already engaged therein and better use could have been made of his engagement than that was actually done. We also feel that steps could have been taken to have informed the Court and counsel on the other side on the 20th September itself that it would not be possible for the appellant's counsel to be present on account of his supervening illness.
While these circumstances are not enough by themselves to reject the present application for restoration as lacking sufficient cause, we are disposed to think lhat they afford sufficient justification for the view that the restoration thereof should not be without terms, and that being so, we hereby order that the appellant petitioner shall pay a sum of Rs. 250/- to the opposite side as costs for restoration of the appeal. We allow one month's time from today for the payment of this money, and further order that if this money is not paid within the time allowed, the appeal shall stand dismissed with costs.
21. In the result, we allow this application, recall our order dated the 20th September, 1963, dismissing the appeal, and further order that it shall be re-admitted to its original number and set down for hearing without avoidable delay having regard to the directions given above.