1. Defendants 1 and 7 in the original suit, who were respondents 1 and 7 in the petition in the Court below, are the petitioners in this Court. They seek to revise the order of the Subordinate Judge of Masulipatam dated the 6th August, 1937. By that order the Subordinate Judge restored a suit which had been dismissed for default on 14th January, 1937. The plaintiff's application for restoration was opposed by defendants 1 and 7 on two grounds : (1) that the decision in the suit was not one dismissing the suit for default but that it was a disposal under Order 17, Rule 3, Civil Procedure Code and (2) that there were no sufficient grounds to set aside the default order. The Subordinate Judge held on both points against the defendants and restored the suit on terms. This revision petition is directed against the said order and it is urged before me by Mr. Lakshmayya the learned Counsel for the petitioners that the disposal was not under Order 17, Rule 2 but was one under Order 17, Rule 3 and that there is no finding by the Subordinate Judge that the plaintiff had sufficient cause for not appearing on 14th January, 1937, on which date the suit was dismissed.
2. As regards the first point it is contended that time had been granted to the plaintiff on the day of the previous hearing for production of his witnesses and that therefore the dismissal of the suit on 14th January, 1937, was one made under Order 17, Rule 3. What happened on that day was that Mr. P. Lingayya who was appearing for the plaintiff was away from town, that another gentleman Mr. Sitaramayya applied for an adjournment and that being refused he took no further part in the proceedings. He was apparently not instructed to conduct the suit. The plaintiff was then asked to go into the witness-box and give evidence. But he evidently felt that he could not go on with the suit in the absence of any pleader duly instructed to conduct the case on his behalf. On these facts I am satisfied that the case falls under Order 9, Rule 9. The mere physical presence of the party has been held not to take the case out of Order 9, Rule 9. Similarly, the mere fact that a pleader who had no instructions to conduct the suit asks for an adjournment is not appearance in the suit whether he formally reported no instructions or not, if all that he did that day was to apply for an adjournment and nothing more. This is not a case in which any act was done by the pleader on the date of the hearing in the conduct of the suit. The decision relied upon by Mr. Lakshmayya in Govinda-rajulu Naidu v. Imperial Bank of India, Vellore (1934) 68 M.L.J. 123 : I.L.R. 58 Mad. 817 does not therefore apply. The other decision relied on by him, namely, Balakrishna Aiyar v. Muthammal : AIR1925Mad316 is one in which on the facts of that case the learned Judges held that the pleader did actually appear. I am not prepared to take the decision as laying down any general proposition of law applicable to all cases. In this case, Mr. Sitaramayya was not the Advocate originally engaged by the plaintiff and was apparently instructed only to apply for an adjournment and not to conduct the suit. Adjournment having been refused, it is clear that he took no further part in the proceedings and whether he actually stated that he withdrew or not is immaterial. I hold that there was no appearance so as to preclude an application for restoration of the suit.
3. On the second question whether the plaintiff had sufficient cause for not appearing or for not being ready on 14th January, 1937, it is no doubt true that there is no clear finding by the Subordinate Judge in the order under revision. He ought to have definitely found whether the plaintiff had sufficient cause for not appearing on 14th January, 1937. But I do not think that any useful purpose will be served by sending the case back for a finding on that point. I have myself gone into the evidence and I find that the plaintiff had sufficient cause for not appearing on 14th January, 1937, in the sense of being ready to go on with the trial of the suit. The mere physical appearance of the plaintiff on the day of the hearing, as already observed, is no appearance in the suit. Vide Gopal Rao v. Maria Susayya Pillai (1906) 17 M.L.J. 225 : I.L.R. 30 Mad. 274, and Mittadar Venkoba Rayar v. Mittadar Kadiriappa Goundar (1914) M.W.N. 344.
4. The lower Court has given costs to the defendants and that h enough panacea for them. I accordingly dismiss this revision petition but in the circumstances I make no order as to costs.