1. Mr. Justice Wallace has referred a point for the decision of a Bench, namely, whether a party when he appeared by a pleader who after an application for adjournment has been refused, reports no instructions is to be deemed ex parte or whether he if personally present in Court at the time must be deemed to have ' appeared ' in the case. Wallace, J.'s order by inadvertence purports to refer the above question alone for our decision, but we must take it that the Civil Revision Petition itself has been referred for disposal.
2. The question at issue was decided in Gopala Row v. Maria Susaya Pillai I.L.R. (1906) M 274 17 M L J 225 by a Bench of this Court, where it was held that a plaintiff fails to appear within the meaning of Section 102, Civil Procedure Code, when his pleader declines to proceed with the suit. It makes no difference that the party himself was present in Court. This case actually determines the point before us, and there has been no reported decision to the contrary since the date of this case, i. e., 1907. That decision has also been followed in Mahant Damodar Das v. Raj Kumar Das I.L.R. (1921) Pat 188, Lalji Sahu v. Lachmi Narain Singh (1918) 3 P L J 355 , Prabhu v. Dwarka Prasad (1918) 4 P L J 152 and Ramdhan Tewari v. Bishun Progash Narain Singh (1919) 5 P L J 17. In one of those judgments a statement is made that the Calcutta High Court takes the same view, but possibly this refers to an unreported case, for, no reported decision of the Calcutta Court has been cited before us. A different view is taken in Soonderlal v. Goor Prasad I.L.R. (1898) B 414 but only as an obiter dictum. On the facts of that case the decree was held to have been passed ex parte. The other case cited, Ismail Ebrahim v. Haji Jan Mahomed I.L.R.(1898) 33 Bom 475, does not seem to be really in point. We have therefore the decision of this High Court followed by practically all the Judges of the Patna High Court, and there does not appear to be any good reason why we should not follow the same. As the correctness of the decision is questioned in Wallace, J.'s reference we think it advisable to add our own reasons.
3. The real question for determination at issue is whether the appearance mentioned in Order 3, Rule 1 is merely a physical appearance, or whether it must be an appearance with the intention of pleading in a suit. It is argued for respondents that mere physical appearance is sufficient, but if this is so it would be an appearance if a party happened to be anywhere on the Court precincts with or without the knowledge of the Court. It is therefore rather difficult to accept the argument that mere personal appearance is sufficient. It is clearly, we think, intended that the appearance must be, not as a man, but as a party and with the intention of acting as such party in that suit. If this is correct, then the mere fact that the party was present in Court when his pleader reported no instructions would not amount to an appearance, for he is merely there as the person who was represented by his pleader. The pleader acted on his behalf and when he ceased to do so, the party took no further part in the proceedings. The mere fact that he was in Court cannot make it an appearance in the suit. We must therefore hold that in the present case there was no appearance by the defendants and that the application to set aside the order as passed ex parte was competent.
4. On this application the Subordinate Judge has passed the following order: ' Without any expression of opinion on the merits of the application and the provision of law under which it is sought to be put in, 1 propose to set aside the decree on petitioner's depositing into Court the amount of decree and costs up to this day within one month from this date. ' The appellant appealed against this order to the District Judge who was inclined to hold that no appeal lay, but that, if an appeal lay, the Subordinate Judge was entirely competent to deal with the matter because he had the conduct of the suit throughout and therefore the District Judge refused to interfere with a matter which was fully within the discretion of the Subordinate Judge. This would be quite right if the Subordinate Judge had exercised any judicial discretion at all, but in the present case he has entirely refused to form an opinion on the merits of the case, i. e., he omitted to determine under Order 9, Rule 13 either that summons was not duly served or that the appellant was prevented by any sufficient cause from appearing when the suit was called on for hearing. Until that point was decided the Subordinate Judge had no power to set aside the decree on, terms or otherwise. It is therefore an order passed without a finding on the point necessary to be determined before such an order could be passed against the respondent. Consequently the District Judge's order leaving the whole matter to the Subordinate Judge's discretion cannot be upheld, for, that discretion, if it can be so called, was exercised in an arbitrary manner. The petition will have to be remanded to the Subordinate Judge for fresh disposal in the light of the above. Costs here will abide the result and be provided for in that Court's order.