Victor Murray Coutts Trottter, C.J.
1. In this case the plaintiff's vakil appeared in Court on the day fixed for the hearing of the suit, asked for an adjournment and stated that, if that adjournment was not granted, he had no further instructions to go on with the case. He had previously filed a vakalat in the ordinary form. He did something more than the mere asking for an adjournment. He took the plaint which he had drawn and signed and endorsed on it as follows : ' I have no instructions except to apply for an adjournment. (Signed) A.V. Krishnaswami Aiyar, vakil for the plaintiff (with the date).'
2. The relevant provision of the Code is said to be Order 3, Rule 4. Sub-rule (1) of that rule is ' The appointment of a pleader to make or do any appearance, application or act for any person shall be in writing, and shall be signed by such per-son or by his recognized agent or by some other person duly authorized by the power of attorney to act on this behalf,' Sub-rule (2) is, ' Every such appointment, when accepted by a pleader, shall be filed in Court, and shall be considered to be in force until determined with the leave of the Court, by a writing signed by the client or the pleader, as the case may be, and filed in Court....
3. It is sought to be said here that, although this vakil wrote what I have read on the back of the plaint after having filed a vakalatnama, the vakalatnama must be considered to continue in force until something further was done, and it is also argued that the effect of the vakalatnama being considered to be in force is to make the pleader constructively appear in a proceeding in which he has explicitly stated that he does not appear. In our opinion, the statute does not require the writing containing the withdrawal by the pleader of his vakalat to be in any specified form, and it appears to us that that which he has endorsed on the back of the plaint would be a perfectly good written withdrawal from his duties and obligations under the vakalat. That is really sufficient to dispose of this case, and Mr. Krishnaswami Aiyar very frankly said that, if we take that view as to the proper construction of the writing, the case, so far as he is concerned, was unarguable. But, while basing our decision on that short ground, we think, in view of some decision of this Court,--one a very recent decision and the other which is unreported--that we ought to point out that when this matter has been discussed in those cases, attention does not seem to have been drawn to the decision of the Privy Council, Radha Kishan v. The Collector of Jaunpur I.L.R. (1900) A 220.. The facts of that case are set out in a quotation from the judgment of the Subordinate Judge, which runs as follows : ' That day (i. e., the day fixed for hearing) the pleader for the applicant stated that he could not conduct the case, and he had received no instructions from his client. Thereupon the Court proceed-ed to try the case and tried and decided the issues on the evidence adduced on the plaintiff's behalf and decreed the suit against the applicant. ' Their Lordships held in that case that the applicant could not be held in the circumstances to have appeared. We trust that when this matter comes before the Courts again notice will be taken of that decision, because, so far as appears, a wider question is determined there, as there is no statement--a feature that exists in this case--to the. effect that the pleader has filed an instrument in writing taking himself out of his vakalat, a withdrawal on his part which Order 3, Rule 4 contemplates.
4. The exact question put to us is, whether when a pleader re-ports no instructions, whether after he has asked for an adjournment, and been refused or not, the Court is correct in holding that the party for whom the pleader was appearing has not appeared. We think that the only answer can be that, at any rate, in the circumstances of this case, the pleader can-not be deemed to have appeared.
5. I should add one other word. The section says that the withdrawal of the pleader must be with the leave of the Court. It does not say, nor do I think we are to import into it, that any formality is necessary about the leave of the Court and in the circumstances, we must presume that, in a case like the present, the Court in assenting to the conduct of the vakil and in raising no question about his withdrawal, must be taken within the meaning of the section to have given its consent.
6. The case will go back to the single Judge for disposal on any point not determined by this Full Bench.
7. I agree.
8. I agree.