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Muruga Chetty and ors. Vs. Rajasami and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1912)22MLJ284
AppellantMuruga Chetty and ors.
RespondentRajasami and ors.
Cases ReferredCf. Esmail Ebrahim v. Haji Jan
- - 1045 of 1907 for the restoration of the second appeal, setting aside the order of dismissal for default passed on the 26th january 1910. the case was posted for orders under rule 100(a) of the appellate side rules of practice as the appellant had failed to pay the charges for printing the papers in the case. krishnaswami aiyar, for the payment of the printing charges and that the failure to pay the same was not due to any default on his part. if you fail to send, the case will be spoiled and there will be no use in blaming us'.the letters written by the appellant to the vakil or his clerks have not been produced. practitioners of the courts are well aware that such cases cannot be depended 'upon to take any time. i cannot hold that there was any good excuse for his failing to do.....sundara aiyar, j.1. this is an application by the 2nd appellant in s.a. no. 1045 of 1907 for the restoration of the second appeal, setting aside the order of dismissal for default passed on the 26th january 1910. the case was posted for orders under rule 100(a) of the appellate side rules of practice as the appellant had failed to pay the charges for printing the papers in the case. the appellant did not appear either in person or by pleader when the appeal was called on for hearing on the morning of the 26th january, and it was dismissed for default with the 3rd respondent's costs, by munro and krishnaswami aiyar, jj. the application for restoration was put in on the 74th february 1910. as the 3rd respondent opposes the restoration of the appeal, we have gone fully into the circumstances.....

Sundara Aiyar, J.

1. This is an application by the 2nd appellant in S.A. No. 1045 of 1907 for the restoration of the second appeal, setting aside the order of dismissal for default passed on the 26th January 1910. The case was posted for orders under Rule 100(a) of the Appellate Side Rules of Practice as the appellant had failed to pay the charges for printing the papers in the case. The appellant did not appear either in person or by pleader when the appeal was called on for hearing on the morning of the 26th January, and it was dismissed for default with the 3rd respondent's costs, by Munro and Krishnaswami Aiyar, JJ. The application for restoration was put in on the 74th February 1910. As the 3rd respondent opposes the restoration of the appeal, we have gone fully into the circumstances under which the appeal was dismissed. The appellant has put in an affidavit on which he relies to show that he was prevented by sufficient cause from appearing at the hearing of the case and, if we should hold against him on this point, that he is otherwise entitled to have the appeal restored. In that affidavit he says that he had sent the necessary funds to his vakil, G. Krishnaswami Aiyar, for the payment of the printing charges and that the failure to pay the same was not due to any default on his part. In other words, he lays the blame for the non-payment on his vakil. Two affidavits have been put iii by the vakil and two by his clerks, Lakshmiah and Bhashyam, respectively, and they disclose a remarkable state of circumstances.No money was paid towards printing charges in the case by the vakil. The client had sent a money order to the pleader for Rs. 40 early in January 1909. The case was posted for orders on the 5th March 1909. Owing to non-payment of the charges, the time for payment was extended for two weeks from that date. The client paid on that date Rs. 28 to his vakil. Lakshmiah, one of the clerks, wrote to the appellant on the 15th March 1909 as follows:-'Received the letter written by you and learnt its contents. When you were here the printing bills were amended and it was found that Rs. 48 had to be paid for one bill and Rs. 20 for the other ; up till now exclusive of the sum of Rs. 40 you sent to Aiyar, you paid me Rs. 28 and went away. On my now asking Aiyar for the money, he said that the money received by him from you was spent and asked me to get the money from you and pay Rs. 40 for the bill. Therefore, as soon as you see this letter remit to my address Rs. 40 by money order, and then attend to other affairs. If you fail to send, the case will be spoiled and there will be no use in blaming us'. The letters written by the appellant to the vakil or his clerks have not been produced. On the 15th July 1909 the clerk Bhashyam wrote to the appellant as follows :-'Received your letters. I did not write any reply as the court closed for two months. Your appeal paper is being printed. We shall let you know the date of hearing'. Again, on the 17th July 1909 the same clerk wrote thus :- 'Your letter was received. The papers in the said appeal are being made ready. You need not in any way be anxious. We shall let you know if there be anything particular.'

2. It would thus appear that after Lakshmiah's letter of the 15th March 1909 the client was not pressed to send any more money It may be observed that the whole amount of Rs. 68 paid by the client was intended for the printing charges. The vakil tells us that he was appearing in the case without any remuneration-The appeal was dismissed for default, as already mentioned, on the 26th January 1916. On the 28th, Bhashyam wrote as follows: - 'Your second appeal referred to above was posted to the 26th instant for hearing and decided against us, that is, the appeal was dismissed.'

3. It is quite clear from the letters referred to above that the client was informed by the vakil's clerks that his case was going on all right, and that he was finally informed that it was decided against him. He never had the slightest intimation that the printing charges were not paid, or that the appeal was dismissed for default of appearance. From what was stated before us by the appellant's vakil it would appear that no further letter was written to the client, but he himself went over to Madras to put in an application for restoration on the 14th February 1910 and engaged another Vakil, G.S. Ramachandra Aiyar, along with Mr. G. Krishnasawmi Aiyar. The latter put in an affidavit dated the 14th February 1910, in which he acknowledges the receipt of the two sums of Rs. 40 and Rs. 28 from the appellant and says : 'My clerk V. Lakshmiah entered the said amounts paid by the appellants to the credit of a different second appeal from the same South Arcot District, namely S.A. No. 49 of 1907, and the printing charges of this appeal were not paid. This case was posted on the evening of the 25th January 1910, for orders under Rule 100(a) of the Translation and Printing Rules, and my clerk Bhashyam Iyengar brought it to my notice then ; I had a recollection that the party had paid the printing charges after time and that time had been extended by the court and on looking over the accouut I found that a mistake had been committed. I wanted to bring this matter to the notice of the court on the 26th January 1910 and on that day this case was posted as the fourth case in the list. On the 26th January 1910,I had three fresh small cause suits posted before His Honor, the Third Judge of the Small Cause Court, for trial and two original suits No. 208 of 1903 and 199 of 1908 before his Lordship Justice Wallis. As this case was the fourth case in the list, I waited for a few minutes in my chambers, made some arrangements for the Small Cause Court work and went to the Original Side to see when my said original cases were likely to be reached and then came to this court. When I reached the doors of this court, it was about a few minutes after this case had been called on and dismissed for default.'

4. The three cases posted above S.A. No. 1045 of 1907 were also cases posted for orders on account of non-payment of printing charges. Practitioners of the courts are well aware that such cases cannot be depended 'upon to take any time. A reference to the cause list of the day shews that this case was reached at 11-8 a.m. I have no doubt that it was the duty of the vakil either to appear in court when the case was reached or to arrange for the appearance of some other vakil on his behalf. I cannot hold that there was any good excuse for his failing to do so. If the failure of the vakil to appear without reasonable excuse be regarded as not sufficient reason for refusing to restore the second appeal, this application must be dismissed.

5. But it is contended on the appellant's behalf that the facts proved show that the vakil's clerks were guity of culpable negligence and fraud against him and that the vakil himself was guilty at least of gross negligence and that the fraud of the clerks must be regarded in law as his own fraud. His vakils stated that, having placed the facts before us, they left it to us to say whether the vakil himself, personally, was guilty only of negligence or also of something worse, that is fraud.

6. Mr. T.R. Krishnaswamy Aiyar, who appeared for the 3rd respondent on the 26th January 1910 when the case was dismissed and before us again along with Mr. T.R. Ramachandra Aiyar, has put in an affidavit in which he says' shortly after the case was dismissed I came out of the court and met Mr. G. Kishnaswami Aiyar, the vakil for the appellant, and he asked me what had become of the case. When I told him that it was dismissed with costs he said that he was sorry that it was dismissed in his absence. I then told him that I would go with him to the court if he wanted and that he might tell their Lordships if he had any thing to say V In reply to that he said words to the following effect: 'that his client was a bad fellow, that he did not send him money or do anything else, and that he did not care to do anything.' This affidavit was made on the 5th December 1911. But Mr. Krishnaswami Aiyar had stated these facts in court when the petition came on for hearing on a previous occasion after notice to the respondent. We had intimated that it would be desirable that the statement should be made on oath. Mr. G Krishnaswami Aiyar has put in an affidavit denying that he made the statements above referred to in Mr. T.R. Krishnaswamy Aiyar's affidavit. Mr. G. Krishnaswamy Aiyar says that what he told Mr. T. R. Krishnaswamy Aiyar was, in his own words, 'that I had experienced considerable trouble in getting the client to pay printing charges for a long time and that there was a mistake in my office in not paying the printing charges; while I was saying so, I was going to the court.. Mr. Krishnaswami Aiyar went away and there was no conversation between us to the effect set out in paras 3 and 4 of his affidavit. I apprehend that Mr. Krishnaswami Aiyar must have misunderstood my statements made hurriedly or did not catch them correctly and exactly.'Mr. G. Krishnaswami Aiyar then goes on to say that Mr. T.R. Krishnaswami Aiyar had made himself acquainted with the contents of his previous affidavit about the end of 1910 and no counter affidavit was filed in the case until long after.

7. Now, when a vakil happens to be unable to appear in a case when it is called on for hearing owing to his being engaged in another court and the case is dismissed for default of appearance, he usually takes the earliest opportunity the same day to make a statement of the circumstances to the Bench hearing the case. Mr. G. Krishnaswami Aiyar admittedly did not do so, and no application for restoration was put in for nearly 20 days afterwards. In the meanwhile the client had been given untrue information that the case was decided against Mm on the merits, and the presentation of the restoration petition was due to the steps taken by the client himself, who-subsequently went to Madras for the purpose. These circumstances fully corroborate the statement of Mr. T.R. Krishnaswami Iyer and throw suspicions on the conflicting account given by G. Krishnaswami Iyer. Apart from any corroboration, I may say that I have no hesitation in accepting the statements of Mr. T.R. Krishnaswami Iyer as true. His affidavit shows that he is stating facts which apparently made an impression on his mind, and it is unlikely that it could be due to misunderstanding or mistaken memory. The letters of Bhashyam, already referred to, show that the client was informed that his papers were being printed when such was not the case. Bhashyam says in his affidavit that he wrote the letters of the 15th and 17th July '' under the impression that, as it was a pending case, the printing must be going on and as I did not know that the printing charges in this case had not been paid. Mr, ,Lakshmiah was in charge of the money and the accounts of the office'' The letters were written in answer to the appellant's letters, but the clerk says that he wrote his letter from pure imagination without making any reference to the facts. Lakshmiah says with reference to his letter of the 15th Match, in which he had said that the vakil told him that the amount of Rs. 40 first paid by the client had been spent, that he said so on his own responsibility, and that his statement about what the vakil told him was untrue, and that he really had no such conversation with the vakil as is set out in the letter. Apparently the demand for more money was subsequently dropped. Bhashyam says in his affidavit that he wrote the letter of the 28th January 1910 stating that the appeal was decided against the appellant, without knowing why it was dismissed. He says he intimated the result as he understood it from Lakshmiah. Lakshmiah does not corroborate him by saying that he made any statement as to how the case was disposed of. Both the clerks say that their master does not attend to correspondence. Lakshmiah states that be looked after and supervised the general work of the office and that the vakil used to leave all the matters in the office to him and he would take the vakil's signatures only when he thought it necessary to impress the client with the importance of the matter contained in any particular letter. The vakil also says that he left all Appellate Side matters and correspondence to his manager Lakshmiah. He adds that he became aware of the letters of the 15th March 1909, the 15th July 19O9, the 17th July 1909 and the 28th January 1910, only on the 5th December 1911 when he saw them in the hands of Mr. G.S. Ramachandra Aiyar. With regard to the non-payment of the painting charges, the account given is that the clerk Lakshmiah incorrectly credited the amount of Rs. 40 to another second appeal, No. 49 of 1907. But this cannot be reconciled with a letter dated the 8th January 1909, signed by Bhashyam, in which he acknowledged the receipt of Rs. 40 from the appellant, although it is now stated that the amount was credited to another person on the 6th January 1909. Nor is it consistent with Lakshmiah's letter of the 15th March 1909 or Bhashyam's letter of the 15th and 17th July11909, or with the fact that after July 1909 no further efforts were made to get money from the appellant, although the case was not posted for orders till January 1910. How the mistake happened to be committed is not explained. The case to which credit is said to have been given was S.A. No. 49 of 1907, and that for which payment was made was Second Appeal No. 1,045 of 1977. The name of the client in the former case was Viswanatham Chetty while the client in the latter was Krishnaswami Pillay. There was no such similarity either in the numbers or in the names of the clients as would ordinarily lead to a mistake of the one for the other. The vakil's day-book and ledger have been put in to prove the mistake made. But the entries appear to be suspicious. The total in the day-book at the end of January 1909 shews clear marks of alteration by changing '1'into '5' in the middle number of the figure so as to show an increased receipt of Rs. 40. The totals at the end of each page also appear suspicious. The entry of Rs. 40' is made on the first line of the page on which it appears, but we observe that the first line of each page is generally blank, except where it is used to denote the amount carried over from the previous page. or are we satisfied with the genuineness of the entry in the ledger relating to the client in Second Appeal No. 49 of 1907. Mr. G. Krishnaswami Aiyar agrees that the entry at the end of January in the day-book appears suspicious. He says he has never examined his account books. He has a press copy book containing copies of letters sent to clients, but he tells us, as already noted, that he was not aware of the letters written to the appellant by his clerks and filed in evidence in this petition until the day previous to the date of his second affidavit. His account, therefore, is that he knows nothing either of the accounts or of any letters written to his clients or of the business done by his clerks in his cases on the Appellate Side. The only thing he was aware of in this case was that on the 25th January 1910, when the case was posted for orders, he told one of his clerks that the client had paid money for the printing charges. But in his affidavit dated 6th December 1911 he says he fully believed that the non-payment of the printing charges was due to the mistaken entry in the account. On his own statement, he was guilty of the grossest and most culpable negligence. In fact, both he and his clerks all admit that they were guilty of carelessness. Having regard to Lakshmiah's letter dated 8th January 1909, and to the appearance of entries in the account books, there are grounds for believing that he has deliberately put in a false affidavit and that he had no reason to believe that its contents were true. It is difficult to believe that the clerks, when they wrote the letters, already referred to, of July 1909 and January 1910, were making statements which they believed to be true. Their conduct towards the client must be regarded as fraudulent. The vakil told us at the hearing that Lakshmiah not only attended to his businesss on the Appellate Side and to the correspondence relating thereto, but was also in charge of the monies received for his cases; and he left us under the impression that the total sum of Rs 68 received from the appellant was kept by Lakshmiah. In the eye of the law at least, he is responsible for the fraud perpetrated on his client. No pleader can be permitted to completely abandon to clerks the discharge of his duties to his clients, and in any event, he must bear the full responsibility for the acts and defaults of his clerks.

8. We have now to decide the question whether, in these circumstances, the appeal should be restored to the file.

9. It is contended for the respondent that the only ground on which an appeal dismissed for default can be restored is, that the appellant was prevented by sufficient cause from appearing on the day fixed for the hearing in person or by pleader ; and that the negligence of the pleader is tantamount to negligence on the part of the appellant himself and would not be a proper ground for restoration.

10. On the other hand, the appellant contends that the court has unfettered discretion in deciding whether an appeal should be restored or not, and that the Civil Procedure Code merely provides that, if the non-appearance of the appellant or his pleader at the hearing is explained, the court is bound to restore the appeal and that it has the power to do so for any other reason that may appear proper to it. And he further contends that negligence on the part of the pleader in consequence whereof he did not appear, is good ground for restoration, and that, in any event, where the pleader is guilty of gross negligence or fraud, as in this case, the appellant is entitled to restoration of his appeal. Order xLI, Rule 19, of the Code lays down the law on the subject. Rule 17 provides that if the appellant does not appear when the appeal is called on for hearing, the court may make an order that the appeal be dismissed. Rule 19 enacts when an appeal has been so dismissed, 'the appellant may apply to the appellate court for the re-admission of the appeal; and where it is proved that he was prevented by any sufficient cause from appearing 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. 'The decision of Sir V. Bhashyam Aiyangar J. in Somayya v. Subbamma I.L.R. (1903) M. 599 is relied on by the appellant. That judgment was passed while the repealed Code of 1882 was in force. Section 556 of the Code provided that if' the appellant does not attend in person or by his pleader, the appeal shall be dismissed for default'' and Section 558 provided that 'if it be proved that he was prevented by sufficient cause from attending when the appeal was called on for hearing the court may readmit the appeal on such terms as to costs or otherwise as the court thinks fit to impose on him.' It will be observed that the present Code does not make it obligatory on the court to dismiss an appeal if the appellant makes default in appearance, while the Code of 1882 did so, and that the present Code lays down that, when the non-appearance at the hearing is explained, the court shall readmit the appeal, while Section 558 of the repealed Code provided that the court may do so.

11. In the case above mentioned, Sir V. Bhashyam Aiyangar J. held that the court had very ample powers in restoring a suit or appeal under Sections 103, 108 and 558 of the old Code and that the power was not confined to cases where satisfactory explanation for non-appearance was given but that it might do so if any other good cause for restoration was shewn. He points out that the right of an appellant to ask for restoration is not limited by the words of the section to cases where he can explain his non-appearance, and that the Code provides generally that he may apply for the re-admission of the appeal. The learned Judge goes on to say : 'There is nothing in any of the above sections of the Code to imply that the application for restoration cannot be granted, unless there was sufficient cause-though, if there was such a cause, it is made obligatory on the courts in the case of original suits to set aside the order of dismissal or decree passed ex parte, as the case may be.'' His view of the section was adopted by the learned Chief Justice of this court in Gopala Rao v. Maria Susaya Pillai I.L.R. (1906) M. 274. In Ismail Ibrahim v. Haft Jan : (1908)10BOMLR904 Russell J. expressed dissatisfaction with this view. He says : 'With regard to the case of Somayya v. Subbamma1 it seems to me I am bound by the decision of Mr. Justice Jardine in Manilal Dhungi v. Ghulam Hussain Vazeer I.L.R. (1888) B. 12 and I confess that, if I were to give effect to the judgment in Somayya v. Subbamma I.L.R. (1903) M. 599 in that way, it would be to apply the section far beyond its scope. 'The judgment of Jardine J. does really deal with the question whether any reason other than that the appellant was prevented by sufficient cause from appearing would be a good ground for restoration. According to the Code of 1882, the court was bound to dismiss an appeal when the appellant made default in appearing, without regard to any other consideration. This might naturally lead to the conclusion that, if the ground which made it obligatory on the court to dismiss was not subsequently explained, the court had no power to restore the appeal. And it would look anomalous to suppose that, if the court was bound to dismiss for non-appesrance, whatever other considerations there might be for not dismissing, these considerations would be a ground for restoration. The legislature, however, has made certain changes in the provisions relating to dismissal and restoration, and these changes, in my opinion, give the court wider discretion than it possessed according to Russell J.

12. And it may be that the legislature altered the provision in the previous Act having regard to the considerations urged in the judgment of Bhashyam Aiyangar J. in favour of giving the court a larger measure of discretion in such cases. The court is not now bound to dismiss an appeal when the appellant does not appear at the hearing, though it is empowered to do so if it thinks fit. It is evidently intended that there may be reasons which would make it proper for the court not to pass an order of dismissal notwithstanding default. If that be so, it follows that those grounds when brought to the notice of the court after dismissal (where it passes such an order) would make restoration of the appeal proper. Consequently, either the explanation of the non-appearance, or the exhibition of circumstances apart from non-appearance, should be sufficient ground for restoration. The legislature has made it imperative on the court to grant restoration where the non-appearance is satisfactorily explained. This is evidently necessary, inasmuch as, except for non-appearance, the court has no power to pass an order for dismissal. But this does not exclude other grounds for restoration, as the cour^ was not bound to dismiss on the simple ground of the non-appearance of the appellant.

13. It appears to me, therefore, that, under the present Code of Civil Procedure, the court has power to restore even where the appellant is not able to prove that he was prevented by sufficient cause from appearing when the appeal was called on for hearing. Whether any such ground exists in the present case, apart from the negligence or fraud of the pleader, I shall consider hereafter. Now, is the negligence or fraud of the pleader by itself a sufficient explanation for non-appearance of the appellant, where, the appellant, as in this case, was not himself present in Madras on the day of the hearing, and especially when he had no notice that the case was posted for hearing on a particular day The respondent's contention is that the pleader's negligence must be regarded as the appellant's own negligence, as the pleader is his agent. Mr. T.R. Ramachendra Aiyar, the learned vakil for the respondent, was hardly prepared to assert that, if we found the pleader guilty of fraud or such gross negligence as would in law amount to fraud, his conduct would bind the appellant. Although, in my view, the conduct of the pleader and of his clerks, for which the pleader is responsible, does amount to fraud or such reckless negligence as must be taken to amount to fraud, it is desirable, having regard to the arguments before us, that I should express my opinion on the question whether the negligence of a pleader, which would not amount to fraud, would empower the court to restore an appeal which has been dismissed for default, Is the party responsible for the negligence of his pleader as if it were his own negligence, and should he be always restricted to an action for damages against his pleader without any remedy against the opponent in the litigation? I have not got to deal with a case where a pleader enters, on behalf of his client, into a contract or bargain or other transaction with a third party under which the latter acquires a complete legal right. But the respondent contends that when judgment is passed by a court dismissing an appeal, the respondent acquires a right under that judgment which he cannot be deprived of in the absence of some ground entitling the appellant to relief against him on well understood legal principles similar to those empowering a party to set aside a contract, and that the conduct of the appellant's1 pleader cannot be regarded as such a ground. This argument appears to me to be fallacious. The respondent in such a case does not acquire a right under any declaration made by an adjudication of court settling the rights of the parties to the litigation. The law which empowers a court to pass judgment dismissing the appeal without adjudicating on the rights of the parties also gives it power to annul the order of dismissal. The respondent has no reason to complain if such power is capable of being exercised in cases where the appellant is not himself personally guilty of negligence. Nothing more is done than to restore the parties to the status quo ante and to proceed with the adjudication of disputes on the merits. There is no reason for assuming that the legislature intended to give the respondent an absolute right to the judgment passed for default without any judicial adjudication of the merits. If the respondent has been so affected that he cannot be restored to his former position, that may be a ground for refusing restoration. The discretion vested in the court would enable it to deal with any proper objections that the respondent may urge against restoration. The principle regulating dealings between parties, where one ot them acts through an agent, is not necessarily applicable to proceedings in court conducted through a pleader. The court has the control over such proceedings, and it is a question for the legislature in what manner that control should be exercised. Besides, it must be remembered that a pleader is not altogether in the position of a private agent engaged by a party. As pointed out by Sir Bhashyam Iyengar J. in Somayya v. Subbamma I.L.R. (1903) M. 599 a party can engage as his pleader 'only a person who has been enrolled as a pleader by the court.'I may add that a litigant engaging a pleader is not in a position to control his pleader's actions in the manner that a principal can control the conduct of a private agent. The rights of the pleader, as one belonging to a learned profession and having a considerable measure of liberty as a member of that profession, might prevent such control, A person is not absolutely bound by the conduct of those who, by powers vested in them under the law or by statute, have a right to act on his behalf and to affect his interests by their action. I may mention a guardian, whether natural or statutory, the manager of a Hindu family, a trustee, the Court of Wards which assumes the superintendence of the estates of persons under disability-as illustrations of this principle. A pleader, no doubt, unlike the classes of persons just mentioned, is chosen by the litigant, and he has considerable powers of binding the pleader by specific instructions. Still, such powers are limited and his choice itself of the person to act for him is also limited by its being confined to a class enrolled by the court as officers to help it in the administration of justice. The pleader engaged in a case may be a barrister against whom it may be difficult for the client to obtain any redress. How can it be held in such a case that no relief can be granted against the opponent who has obtained judgment owing to the pleader's negligence? It must also be remembered that in this country there are pleaders of various grades possessing different qualifications and possibly inspired by different standards of professional conduct and rectitude. In Neale v. Gordon Lennox (1902) L.R. Ap. Cas. 466 the House of Lords held that an agreement to a reference to arbitration, made by counsel against the instruction of his client, was not binding on the latter. It was contended there that the counsel had absolute authority to bind the client by such a conseut, unless the restriction on his authority was known to the opponent. An application was made in that case by the client to set aside the reference to arbitrators. The Court of Appeal held that the consent of the counsel was binding on the client. But the House of Lords reversed that opinion. Lord Halsbury observed: 'I will not go through the cases, because to my mind there is a higher and much more important principle involved. The court is asked for its assistance- and I entirely repudiate the technical distinction between what is called an application for specific performance and an order to be made that such and such things should be done-'the court is asked for its assistance, when this order is asked to be made and enforced, that the trial of the case should not go on; and to suggest to me that a court of justice is so far bound by the unauthorised act of learned Counsel that it is deprived of its general authority over justice between the parties is, to my mind, the most extraordinary proposition that I ever heard. That condition of things seems not to have been in the contemplation of the Court of Appeal. I will only say for myself that I should absolutely repudiate any such principle. When, the contract is something which the parties are themselves by law competent to agree to, and where the contract has been made, I have nothing to say to the policy of law which prevents that contract being undone. The contract is by law final and conclusive. But when two parties seek, as part of their arrangement, the intervention of a court of justice to say that something shall or shall not be done although one of the parties to it is clearly not consenting to it, but has in the most distinct form said that the consent to refer-to take it from the jurisdiction of the ordinary tribunal- shall only be on certain terms, to say that any learned Counsel can so far contradict what his client has said and act without the authority of his client as to bind the court itself, is a proposition which I certainly will never assent to.' Later on his Lordship says: 'But when I come to this case and consider the question of what should be the position of the other party who has acted upon the apparent authority of counsel, there are cases in which the court undoubtedly in the exercise of its discretion might well say: 'if it is only a question of money, 11 it is only a question which costs will rectify, this matter can be put right by the payment of costs.' That is one example. Or the position of the other party might have been totally altered by what has taken place, and therefore we cannot interfere. That would be because upon its general jurisdiction of doing justice between the parties the court would think that it was not a case in which it ought to interfere. These were the words which were uttered by Lord Lyndhurst in one of the cases which have been quoted.' Lord Lindley observes: 'The judgment of the Court of Appeal proceeds upon the ordinary doctrines of agency; but the ordinary doctrines of agency are only half of what is to be considered in a matter of this kind.' That case, no doubt, is not, in its facts, quite analogous to the present one, but it shows that the doctrines of agency should not be applied without reservation to a pleader. When the court has any control over the proceedings and when the act of a pleader is not one done entirely out of court, it is not proper, by applying purely the doctrine of agency, to bind the client absolutely by the pleader's act. In Furnivel v. Bogle (1827) 4 Russ. 142 it was held that a client is not bound by a compromise made by counsel, if the counsel was under a mistake of fact when he agreed to it. Besides, when a pleader by negligence does not put in an appearance at the hearing, in what sense can it be said that he represents his client in not doing so, when he has been retained to appear and conduct the case It may be that a client would not be entitled to relief against his opponent merely because his pleader in the actual conduct of the case was guilty of negligence in adducing evidence or in arguing the case or otherwise, in consequence of which the judgment went against the client. Whether this principle is subject to any limitations it is unnecessary to consider in this case. It is enough to say that the failure of the pleader to appear at all for his client is distinguishable from negligent performance of his duties. It must be conceded that the respondent's argument that he acquired some sort of right by the dismissal of the appeal for default, is not unsupported by authority. In In Re. Coles and Ravenskea (1907) L.R. 1 by a mistake of counsel the time for an appeal was allowed to elapse and special leave of the court of appeal was asked under the rules to extend the time for appealing. The court held that it had no power to do so; But the judgment was based by two of the learned Judges at least-Collins, M. R. and Cozens-Hardy, L.J.-on precedents which, in their opinion, compelled them not to allow extension. Both the learned judges declared that they would come to an opposite conclusion, if they were free to do so. Cozens-Hardy L.J. pointed out that the high authority of Bowen L. J; Cotton L.J. and Brett M. R. was in favor of holding that the court's discretion to grant extension w as unfettered-In Re. Manchester Economic Building Society (1883) R. L. 24; Collins v. Vestry of Paddington. (1879) L.R. 5 On the other hand, James, L.J., in International Financial Society v. City of Moscow Gas Co. (1877) L.R. 7 Ch.D. 241 observed: 'The limitation of the time to appeal is a right given to the person in whose favor a judge has decided. I think we ought not to enlarge that time unless under some very special circumstances indeed, that is to say, if there has been any misleading through any conduct of the other side, as was mentioned in the analogous case of vacating enrolment which came before Lord Cot-tenham, and afterwards before Lord Chelmsford, in which it was laid down that the right of the suitor was ex debt to justifies to keep his enrolment of the decree if it was made in due time, unless in very special cases. For instance where there was anything like a misleading on the part of the other side, or where some mistake had been made in the office itself and a party was misled by an officer of the court, or again where there was some sudden accident which could not have been foreseen-some sudden death or something of that kind-which accounted for the delay ; in such cases leave might be given.' Farwell L,. J. (in In Re. Coles and Ravenshear (1907) L.R. 1 K.B. p. 1 while agreeing that it is, generally speaking, undesirable to fetter a discretion given under the rules by hard and fast lines, was influenced by the consideration, which I may express iu his own words : 'The litigant in such a case has not been deprived of a hearing. His case has been heard in the court below.' With the utmost deference, it may not be improper to ask, is it not of equal importance to the litigant that he should be heard by the Court of Appeal when he feels aggrieved by the decision of the court of first instance, provided there are reasonable grounds for the court exercising in his favor its discretion to extend the time for appeal It is unnecessary, however, to refer further to the conflicting English decisions, as they proceed upon the 'language of the rule applicable to each particular case in the Judicature Act. But I may observe that the English courts do not feel fettered in the exercise of their discretion, where the rule applicable is expressed in terms sufficiently wide and where the court does not feel pressed by precedents applicable to the particular rule. Thus in Baker v. Faber (1908) E.W.N. 9 the Court of Appeal extended the time for appeal under Order LxIv, Rule 7, and distinguished the previous case In Re. Coles and Ravanshear 1/6 on the ground that that case had reference to another rule. The language of James L.J. in International Financial Society v. Moscow Gas Co. (1877) L.R. 7 Ch. D. 241 was adopted by the Bombay High Court in Bhimrao V. Ayyappa I.L..R. (1906) B. 33 where the court was asked to excuse the delay in the presentation of an appeal. But with all deference I am unable to accept the position that the theory of the acquisition of a right by the respondent could be put forward where such acquisition is made subject by the legislature to a discretion iu the court to affect such supposed right by its order in the interests of the appellant. Possibly, the fact that limitation, which is itself a well recognised source of right, was what was sought to be relieved against, might have influenced the view expressed in International Financial Society v. Moscow Gas Co. (1877) L.R. 7 Ch. D. 241 and Bhima Rao v. Ayyappa I.L.R. (I896) B. 33. But the present case is not one in which any right is set up on the ground of limitation. There are several cases in England in which the mistake or negligence of the solicitor has been recognised as giving a right to relief to the client. See Seaton on Judgments, Vol. I, p. 139, in which cases of restoration of an action dismissed for default of plaintiff's appearance are referred to, and the rule is stated to be that the action will be restored on payment of the costs of the opposite side. See also Burgoine v. Taylor (1878) L.R. 9 Ch. D. 5 ; Southampton, etc., Steam Boat Co., Ltd. v. Rawlins (1865) 34 L.J. Ch. 287 and Michell v. Wihon 25 W.R. 380. In De Ronfiguy v. Peale 12 R.R. 687 in restoring an action, the court held that ' it: would only be encouraging negligence of attorneys to grant such indulgence in the ordinary way at the client's expense. Attorneys ought to know that, they are amenable to their clients for the consequence of such neglect.'

14. Neither would it be putting the plaintiff in the same situation if they were to grant the rule on the payment of costs between party and party. They therefore granted a rule nisi, which, on a subsequent day, was made absolute, for a new trial upon payment by the defendant's attorney, out of his own pocket, of all costs as between attorney and client. (The defendant was the party who failed to appear in that case owing to the solicitor's negligence), In India also, suits have been restored where the failure to appear was due to the pleader's mistake or negligence-see Oriental Finance Corporation v. Mercantile Credit & etc. Corporation (1866) 2 Bom. H.C.R. 267 where Couch C.J. states the English rule to be in support of his judgment ; Narain Singh v. Bheurab Churu Panda Ghose (1881) 8 C. L.R. 350 where the appellant was misled by the failure of the pleader to intimate the transfer of the appeal from the file of the Judicial Commissioner, Chota Nagpur, to that of the Deputy Commissioner of Manbhoom ; Railash Chunder Das v. Ramanadha Chauduri 2 C.W.N. 414 where the pleader's clerk left the place on account of illness, taking away the papers with him and no intimation was given to the client of the hearing. Another case relied on by the appellant-Anandamoyee Dossee and Ors. v. Poornachunder Roy (1861) 9 M.I.A. 26--has really no bearing on the point. In America the negligence or fraud of the attorney has been held to be a ground for restoring an action dismissed for default, though the practice is not uniform in all the States. In Black on Judgments, Section 340(a) refers to cases of negligent performance of duties, where much stronger grounds would be necessary to entitle the client to relief. At page 256 the learned author observes : 'On the other hand, it is held in a few States, and notably in New York, that the negligence of the attorney is a sufficient ground for setting aside the judgment, provided that the client himself was uot directly in fault A party may be relieved from a judgment obtained against him by reason of the negligence, ignorance or fraud of his attorney, without compelling him to resort to an action against the attorney, or showing the latter to be insolvent. And even in the Stales which generally adhere to the stricter rule, there is a disposition to relax it somewhat under exceptional circumstances.' The proper conclusion to come to is, in my opinion, that the court is not bound to restore an appeal in every case where the non-appearance is imputable to the pleader's negligence, but may, in its direction, leave him to his remedy against the pleader by an action for damages. But it would often work grave injustice to confine him to such remedy. As observed by Bhashyam Iyengar J. in Somayya v. Subbamma I.L.R. (1903) M. 599; 'It may be that the parly who has thus suffered is only able to obtain a decree for nominal damages or a fruitless decree for substantial and adequate damages against such pleader, next friend or guardian, and in the majority of cases it will be impracticable to establish before the court in which he sues for damages, which may happen to be a Court of Small Causes, that he could ultimately have succeeded in the suit or appeal which was pending in the High Court or some other tribunal and which has been dismissed for default. And in a large class of suits in which the claim is not a mere pecuniar)' one compensation by way of damages would be no remedy at all.'

15. The courts have sufficient disciplinary jurisdiction over pleaders as such, as well as over next friends and guardians ad litem of infas, and ample power to subject parties to terms as to costs when relieving them on reasonable and proper grounds from the serious and, in some cases, irreparable consequences of refusing to restore to file cases which have been dismissed for default or in which decrees were passed ex parte. In Guilt v. Crawley (1831) 8 Bingham 144 relief was refused on the ground that the defendant would be prejudiced by doing so. Tyndall C.J. observed : 'It would be a gross injustice to plaintiff if we were to listen to the application, as it would enable the defendant to lie by, and, after hearing the particulars of the plaintiffs' case, to harass him with a new trial and evidence got up in answer.' In Flower v. Gedyl (1857) 23 Beav. p. 449 relied on for the respondent, the court, no doubt, refused to restore the case. But no rule was laid down that it had no power to do so.

16. I have already observed that the negligence in the present case is so gross as to amount to fraud, the evidence showing a design on the part of either the vakil or his clerks to do nothing for the client and to appropriate his money. Even in the case of a mere agent conduct of this kind might entitle the principal to disaffirm the act of the agent. In Kerr on Fraud, 4th edition, page 280, in dealing with the question whether notice to the solicitor can be treated as notice to the client, it is observed: 'The tendency of the later decisions and of the Conveyancing Act, however, has been in favour of the doctrine that when a man employs a solicitor, whose own purpose and meaning in the transaction is to cheat and defraud his client, and who in furtherance of this intention keeps back purposely from his knowledge the true state of the case, the presumption is conclusively repelled that the client has imputed or constructive notice through the solicitor of the fact which has been concealed from him.' 'This exception' said Fry J. in Cave v. Cave (1880) L.R. 15 Ch. D. 639 'has been put in two ways. In the one view, notice is not imputed, because the circumstances are such as not to raise the conclusion of law, which does ordinarily arise from the mere existence of the notice to the agent. In the other view, the act done by him in his character of agent is such as cannot be said to be done by him in his character of agent, but is done by him in the character of a party to an independent fraud on his principal and that is not to be imputed to the principal as an act done by his agent.'

17. For these reasons, I am of opinion that we have power to restore the appeal to the file and that we should do so in this case. Apart from the conduct of the pleader and his clerks, there are other reasons why we should do so. The suit is one relating to immovable property, and it is impossible to say whether any decree that the appellant might obtain for damages against the pleader would be adequate compensation for the injury sustained by him by the loss of his suit. Moreover, the suit was instituted by the appellant and under leave of court on behalf of himself and other persons belonging to a community of individuals whose rights might also be affected by the dismissal of the appeal.

18. We therefore set aside the order of dismissal for default passed by this court on the 26th January 1910 and direct that the second appeal be restored to the file subject to the conditions mentioned below. And we further direct that the pleader G. Krishnaswami Aiyar do pay all costs of this petition, as well as the 3rd respondent's costs of the day for the former hearing of the 26th January 1910. He will also pay into court within 3 days the amount due for printing charges in the case. If he fails to do so, the appellant will have 5 days from that date to pay the amount. In default of payment by either the pleader or the appellant, this petition will stand dismissed without further orders.

Spencer, J.

19. As regards the power of courts to restore appeals dismissed for the appellant's default, in Somayya v. Subbamma Bhashyam Aiyangar J I.L.R. (1903) M. 599 cited the instance of suits being dismissed for other causes than non-attendance, e. g., the vakil's vakalat being in the opinion of the judge invalid or exhausted or the vakil being not entitled to practise in the particular court' or the plaintiff or defendant being personated by another. The learned Judge proceeded to observe that in such cases, if restoration can only be granted where there is sufficient cause which prevented the party's appearance, the applicant for restoration can have no remedy, for 'he does not profess to establish that there was a sufficient cause which prevented him or his vakil from appearing.'

20. Now the words used in Section 558 of the Code of Civil Procedure of 1882 are : 'If it be proved that he was prevented by any sufficient cause from attending when the appeal was called on for hearing or from depositing the sum so required, the court may re-admit the appeal on such terms as to costs or otherwise as the court may think fit to impose upon him.'' Section 551(2) also uses the word 'attend' not 'appear,' It says:'' If on the day fixed under Sub-section (1) or any other day to which the hearing may be adjourned, the appellant does not attend in person or by his pleader, the appeal shall be dismissed for default.' But Sub-section (1) refers to the appearance of the appellant or his pleader, and appearance, to my mind, means effective appearance. Cf. Esmail Ebrahim v. Haji Jan (1908) 10 Bom L.R. p. 904 where a plaintiff was present in court without his vakil but was not ready to go on with his case in his vakil's absence. For instance, a pleader who informs the court that he has no instructions from his client may be regarded as not putting in an appearance for him. Failure to appear would thus include disability of the pleader from want of a proper vakalat or other cause of a similar nature. Appearance is defined in Woodroffe and AMIR ALI'S Commentary under Order Ix, Rule 1, as the actual attendance in the court-house of the party in person or by pleader or recognised agent, Who must be duly appointed to act on his behalf. If appearance is rnade by pleader, the pleader must be duly authorised and able to answer all material questions. (See also the Commentary under Order in, Rule 1.) In the Code of 1908 the word used in Order xli, Rules 17 & 19, corresponding to the old Sections 556 and 558, is ' appear', not ' attend.' In my opinion, if an appellant fails to deposit the costs of printing material documents, he fails to perform one of the acts which the law declares to be necessary to complete his appearance at the hearing, as the court will not hear him, though he be present, if the papers are not printed. In this view, the language of the present Code seems to be wider and to embrace all kinds of default in appearance. Rule 19 of Order XLI appears to invest courts with ample power to re-admit for sufficient cause an appeal dismissed for failure to pay printing charges, irrespective of the fact whether the appellant and his vakil were or were not present in court on the date when the case was posted for orders under Rule 100(a) of the Appellate Side Rules of Practice. I do not find any other express provision in the Code of Civil Procedure for re-admitting appeals in cases where the appellant is not 3ble to prove that he was prevented by sufficient cause from being present when the appeal was called on for hearing. The only other remedy, as pointed out by Bhashyam Iyengar J., is not always satisfactory.

21. I feel no doubt as to the discretionary power of courts to restore appeals dismissed owing to negligence of an appellant's pleader, where the appellant himself has shown all possible diligence towards causing appearance to be made, and I agree with my learned brother in the order proposed to be passed in the particular case and also as to the opinion which he has formed of the pleader's conduct in the matter.

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