1. This petition arises out of an order of the Subordinate Judge refusing to restore a suit dismissed by him. The facts are shortly these. The plaintiff who is a resident out of British India filed this suit against the Secretary of State for India in Council to recover certain sovereigns which were confiscated. As he was away out of British India an application was made for security for costs and security was ordered. He did not give security within the time but filed an application for extension of time to give security. As regards the suit itself it was adjourned more than once and the final disposal of the suit and the petition to extend the time for security came on together. An order was passed extending the time and accepting the security, but, when the case was taken up, the plaintiff's pleader said that he was not prepared to go on as the witnesses subpoened were absent. The party was also present at that time and he too was not prepared to go on with the result that the Subordinate Judge dismissed the suit.
2. It is argued before us by Mr. Venkataramana Rao that the dismissal was not one for default but one under Order 17, Rule 3, as the Judge asked the plaintiff to give evidence but he did not do so. It is contended by Mr. Krishnaswami Aiyar on the other side that the Subordinate Judge dismissed the suit really because the plaintiff was not prepared to go on and there was no order requiring him to give evidence on a particular date which was disobeyed and also states that the Full Bench ruling in Pichamma v. Sreeramulu ILR (1917) M 286 : 34 MLJ 24 settles the question as to what is to be done in case a party does not appear even though there is an order of Court directing him to do a certain act on a particular date. It is unnecessary to consider this question further as the order of the Subordinate Judge itself shows that the learned Judge treated it as one for default of appearance and not as one for failure to do a particular act which he required the party to do. Treating the case as one for dismissal for default, the question is whether a suit can be dismissed under Order 17, Rule 2, where the pleader and the party are both present in Court and the pleader says that he is not prepared to go on, and the party also says that he is not prepared to go on. On this question, the balance of authority is in favour of the view that such a dismissal would amount to one under Order 17, Rule 2, which corresponds to old Section 157.
3. The decisions in Gopala Row v. Maria Susaya Pillai ILR (1906) M 274 : 17 MLJ 225 and in Kaliayappa Mudaliar v. Kumaraswami Mudali : (1926)51MLJ290 which are decisions of benches support the contention of the appellant that, where a vakil says he has no instructions, the presence of a party in Court would not take the case out of the category of ' dismissal for default of appearance'. We may point out that under the Civil Rules of Practice the party cannot conduct his case so long the vakalat to his vakil is in force (page 2 of the Rules and Orders) and under Order 3, R. 4 of the Civil Procedure Code the vakalat can be cancelled only in the manner stated therein. No doubt the view in Gopala Row v. Maria Susaya Pillai ILR (1906) M 274 : 17 MLJ 225 and Kaliyappa Mudaliar v. Kumaraswami Mudali : (1926)51MLJ290 has not been approved by single Judges of this Court. In C. M. A. No. 69 of 1925 Madhavan Nair, J., was prepared to follow the view taken in Kaliyappa Mudaliar v. Kumaraswami Mudali : (1926)51MLJ290 while Curgenven, J., took an opposite view. Odgers, J., was inclined to take a different view in Viswanatha Asari v. Sami Asari (1923) 18 LW 209. But it is pointed out in Kaliyappa Mudaliar v. Kumaraswami Mudali. : (1926)51MLJ290 that the balance of authority of the other High Courts is also in favour of the view taken by two benches of this Court. Such being the case, we do not think it necessary to dissent from the current of authority and to hold that where the party is present when his vakil says he has no instructions it makes the order inapplicable. As to the phrase 'no instructions', it is difficult to lay down any hard and fast rule as to what is meant by it. 'No instructions' is sometimes used when a party does not pay the fees to the vakil; it is sometimes used when he does not go to him at ail; and it is used just to show that he is not ready to go on. Generally, where a pleader says he is not ready to go on and does not go on, it is difficult to see how the dismissal can be said to be anything else than a dismissal for default. We say nothing about the merits of this case and we direct the Subordinate Judge to take the application on its merits and see if sufficient cause has been shown for restoring the suit.
4. Costs to abide and follow the result of the application.