1. This is an appeal from an order of the District Judge of Anantapur dismissing in limine an application purporting to be under Order 9, Rule 9, Civil Procedure Code, praying that an ex parte dismissal of a suit be set aside.
2. The admitted facts of the case are that the plaintiff engaged three vakils to appear for him and that on the date of hearing, all of them were absent. One Mr, Krishna Sastri, however, appeared on behalf of one of the three, Mr. Venkata Reddi, and requested an adjournment or that the case might be passed over for some time. The case was passed over and when called again, Mr. Krishna Sastri reported no instructions on behalf of Mr. Venkata Reddi. The suit was thereupon dismissed. The question is whether it was dismissed under Order 17, Rule 2 or under Order 17, Rule 3.
3. It has been held repeatedly that when a vakil comes to Court merely to ask for an adjournment and upon that being refused reports no instructions, the pleader fails to appear; and it has also been held that unless the plaintiff himself takes some further part in the proceedings thereafter, he himself also fails to appear and that therefore any order of dismissal of the suit would be under Order 17, Rule 2. In Gopal Row v. Maria Susaya Pillai (1906)17 M.L.J. 225 : I.L.R. Mad. 1274 the learned Chief Justice said:
It seems to me the plaintiff failed to appear as from the time when his pleader declined to proceed with the case. On behalf of the appellant, it was suggested that the plaintiff was present in Court when his pleader declined to proceed. Even if it were so, this, in my view, makes no difference. The plaintiff was not appearing in person but by his pleader, and if it can be said that the pleader failed to appear, as from the time when he declined to proceed, it follows that the party also failed to appear.
4. That decision seems to have, formed the basis of all the decisions of this High Court on this point since. It would therefore follow that the fact that the plaintiff in this case had his witnesses present in Court would make no difference. He came to Court expecting that his pleader would conduct the case and he did not appear himself but through his pleader; and from the moment that his pleader reported no instructions he, like his pleader, failed to appear.
5. There is a further difficulty in the way of the respondents. As Jong as a vakalat in favour of any vakil was in force, the plaintiff could not himself appear. So that despite the fact that Mr. Krishna Sastri on behalf of Mr. Venkata Reddi had reported no instructions, the plaintiff was still unable to conduct the suit himself; for he had not cancelled the vakalat in favour of the other two vakils, nor had they cancelled it.
6. The learned District Judge seeks to distinguish Venkateswara Rao v. Subramaniam : AIR1939Mad974 and the cases which it follows by pointing out that Mr. Krishna Sastri did not report no instructions as soon as he came to Court. He asked the Court to pass over the matter for the present to give him time to consider the case. Mr. Gopala-charlu for the respondents relies on two cases in which it was held that if something is done in furtherance of the proceedings before the Court, it cannot be said that the party or his pleader who was appearing for him has failed to appear. In Govinda-rajulu Naidu v. The Imperial Bank of India (1934) 68 M.L.J. 123 : I.L.R. Mad. 817 for example, the vakil filed an additional written statement; and the learned Judges pointed out that he could not be said to have failed to appear if he had filed a written statement. There was no such act in the present suit; but there is a reported case in which little or nothing was done, namely, Patinhare Tarkatt Rama Mannadi v. Vellur Krishnan Menon I.L.R.(1902) Mad. 267. It was one in which a vakil said that his pleader was absent and that as he was not in possession of the records, he could not argue the appeal. It was held that there was an appearance. The point was not discussed however; and this case seems not to have been referred to in later decisions of this Court. That case may however be distinguished as one dealing with an appeal, where all that a vakil has to do is to argue, the records being before the Court. It moreover does not appear that in that case that the vakil reported no instructions. The learned District Judge thought that it was a material fact that Mr. Krishna Sastri did not at once report no instructions; but it has to be remembered that he was at no time ready to proceed with the case. He merely in the first instance asked the Court to pass over the case for a few hours, and it seems to me that when Mr. Krishna Sastri appeared at 3 o'clock and reported no instructions, the position was the same as if he had reported no instructions in the first instance. The arranging of the day's work is not a judicial act; and so a request by a practitioner to pass over a case for an hour or two is not a step taken in the prosecution of the proceeding.
7. I am therefore of the opinion that Venkateswara Rao v. Subramaniam : AIR1939Mad974 and the cases on which it is based cannot be distinguished from the present case; The appeal is therefore allowed and the application remanded to the District Court for disposal on the merits. The costs of this appeal will abide the result.