1. This appeal arises out of an order passed by the learned Subordinate Judge of Salem refusing the plaintiff's application to set aside the dismissal for default of a suit which had been filed in forma pauperis. The application purported to be one made under Order 9, Rule 9 of the Civil Procedure Code. Two objections were taken by the contesting defendants, viz., (1) that the order of the lower Court dismissing the suit was one made under Order 17, Rule 3 of the Code and that consequently no application to set aside the dismissal would lie under Rule 9 of Order 9 of the Code and (2) that in any event there was no sufficient cause which would justify the setting aside of the dismissal. The learned Subordinate Judge overruled the first objection holding that the dismissal of the suit was under Order 9, Rule 8 of the Code, but on the merits he held that there was no sufficient cause and dismissed the application.
2. The facts relevant to the determination of this appeal are the following. The application to sue in forma pauperis was made on 2nd September, 1942. It was registered as a suit on 29th January, 1944. Issues were settled on 31st August, 1944. The suit was posted for trial to 17th October, 1944, and adjourned to 20th October, 1944, to be dealt with along with a petition which had been filed. On that date neither party was ready and as older suits were also being tried the suit was adjourned to 15th December, 1944. It was again adjourned to 4th January, 1945, as other suits were being tried. On that date the plaintiff's vakil asked for an adjournment on the ground that the witnesses for whom batta had been paid six days after the date of the last hearing had not been served and that there were also attempts at settlement with defendants 6 and 7. The Court not being satisfied that batta had been paid promptly asked that all the documents should be marked on that date and the plaintiff examined. Thereupon the plaintiff's vakil reported 'no instructions.' The plaintiff in person then wanted a long adjournment which was refused and thereupon the plaintiff agreed to the case being adjourned to the 5 th January, so that he might engage a vakil and be ready to proceed with the trial. On the 5th January, the plaintiff did not engage a vakil and was not ready to go on with the trial. He presented two applications in person to the Court, one for the examination of a witness, one Mallikarjuna Iyer, on commission and the other for an adjournment of the suit. The Court asked the plaintiff to examine himself, mark his documents and to deposit on the 6th January, the amount necessary for examining Mallikarjuna Iyer, on commission. The plaintiff did not agree and thereupon the learned Judge refused the application for adjournment and dismissed the suit and also the application for the issue of a commission.
3. It is obvious that the plaintiff applied to the lower Court for setting aside the order of dismissal of the suit on the footing that that order was passed under Order 9, Rule 8 read with Order 17, Rule 2 of the Code and the appeal before us purports to be under Order 43, Rule 1 (c) of the Code. The short question in this appeal is whether the plaintiff was entitled to make the application to the lower Court under Order 9, Rule 9 of the Code. It would be seen from the facts already set forth that the plaintiff appeared at the adjourned hearing of the suit on the 5th January, and though no formal order of revocation of the vakalat had been made, the vakil had retired from the case on the day previous. On the 5th January, the plaintiff was not in fact represented by any counsel to conduct his case and was a litigant entitled to prosecute his case in person. Indeed, as already observed, he filed the application to examine a witness on commission in person. Can it be said in these circumstances that the plaintiff did not 'appear' when the suit was called on for hearing so as to attract the operation of Order 9, Rule 9 of the Code? In my opinion, the plaintiff appeared at the hearing and the dismissal of the suit was not under Rule 8 read with Order 17, Rule 2 of the Code.
4. It is now well established by decisions of this and of some other High Courts that the mere physical appearance in Court of a party who has engaged an advocate who reports at the hearing that he has no instructions to conduct or defend a suit will not amount to 'appearance' though the Bombay High Court has taken a different view (see the decision in Sundarlal v. Goorprasad (1898) 23 Bom. 414). The cases relied on by Mr. V.C. Viraraghavan, the learned advocate for the appellant are all cases in which an advocate is on record for a party and an application for adjournment is made by or on behalf of the advocate and it is refused and thereupon the Court is intimated that the advocate has no instructions to go on. In all such cases it has been held that the mere physical appearance of the party is not sufficient to disentitle him to apply for setting aside the dismissal for default of a suit or a decree passed ex parte under the provisions of Order 9 of the Code.
5. In Kaliappa Mudaliar v. Kumaraswami Mudaliar : (1926)51MLJ290 the defendant's pleader and the defendant were both present at the hearing and the pleader reported he had no instructions. On the suit being decreed it was held that the defendant was entitled to have the decree set aside under Order 9, Rule 13 of the Code as the appearance should be as a party with the intention of acting as such party in the suit and 'not as a man.' In Authimoolam Pillai v. The Secretary of State for India in Council (1927) 54 M.L.J. 351 the pleader and the party were present in Court and both of them said that they were not prepared to go on with the suit and it was dismissed. It was held by a Division Bench that it was a dismissal for default of appearance under Order 17, Rule 2 of the Code. The cases reported in Venkateswara Rao v. Subramania : AIR1939Mad974 Kovummal Ammal, In re : AIR1934Mad199 and Garpati China Basava Satyanarayana v. Hindu Religious Endowments Board, Madras : AIR1945Mad300 are similar cases and need not be discussed.
6. Strong reliance was placed by Mr. Veeraraghavan on the decisions reported in Sikandar Ali v. Kushalchandra Sarma I.L.R. (1931) Cal. 906 and Sardarmal Seraogi v. Jaharmal Chiranjilal I.L.R. (1931) Cal. 906. In the first case the plaintiff had engaged two pleaders to conduct his case both of whom were absent at the hearing. An adjournment was applied for by the plaintiff and also by his pleader (apparently engaged to represent the pleaders who were absent). The adjournment was refused and the suit was dismissed. An application for restoration was made under Rule 9 and was held to be sustainable. Reliance is placed on the passage at page 758.
Turning to the Code itself, order 9, Rule 8 says that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing....
The word 'appear' in this rule apparently means 'appearing in the suit.' A party may be present in the precincts of the Court or he may be found present in the Court room, but, if he does not, take part in the suit, it cannot be said that he has ' appeared.' This is what is meant by order 9, Rules 6 and 8. If a plaintiff comes to Court and files an application for adjournment and, when the application is refused, he retires from the suit, though he may not have physically retired from the Court, he is not to be considered any longer to be present in the suit and any order passed, in such circumstances, must be taken to be an order passed ex park.
7. In the second case the plaintiff stated that his pleader was engaged in another Court and he applied for an adjournment. The suit was dismissed, an adjournment being refused. Folio ing the earlier case reported at page 756, Mukerjee, J., held that an application under Rule 9 to set aside the dismissal was maintainable. In my view both these cases are clearly distinguishable and fall in line with the Madras decisions referred to by me.
8. Mr. N. Sivaramakrishna Aiyar, learned Counsel for the respondents has referred us to the decision reported in Govindarajulu v. Imperial Bank of India (1934) 68 M.L.J. 123 : I.L.R. 58 Mad. 817. In that case one of the issues had already been determined and on the adjourned date first defendant's pleader filed an additional written statement and on his application the Court also framed an additional issue. The pleader thereafter applied for an adjournment on the ground that the first defendant was unable to be present on account of illness. Adjournment was refused and the case proceeded to trial and a decree was passed against the first defendant. It was held that the first defendant was not ex parte and not entitled to apply under Order 9, Rule 13 to set aside the decree.
9. In the light of the authorities and the facts of the case with which we are con-cerned, I am clearly of the view that the plaintiff 'appeared' on the hearing of the suit and also took a step in the prosecution of the suit by filing the application in person for the issue of a commission. The dismissal of the suit on adjournment being refused was and could only be in the circumstances under Order 17, Rule 3. No application therefore lay to the lower Court under Rule 9 of Order 9 of the Code.
10. In this view it is unnecessary to consider whether on the merits the dismissal of the suit should have been set aside. This appeal therefore fails and is dismissed with costs of the contesting 8th respondent.
Frederick William Gentle, C.J.
11. I have had the advantage of reading the judgment just delivered by my learned brother. I agree with the conclusion expressed and the reasons given, and have nothing to add.