1. This civil miscellaneous appeal raises a point of distinction between O. 17, R. 2 and O. 17, R. 3 C.P.C. This distinction had become a matter of importance to the parties in this case in the way their suit was disposed of by the trial Court, when it was called for final hearing. What happened on that day had better be described in the words of the learned District Munsif himself.
"The suit is in list. Petition filed for adjournment by the plaintiff on the ground that the important witness had not come, rejected. Plaintiff present. Suit dismissed for non-prosecution with costs of defendants."
Against the dismissal of the suit, in the manner aforesaid, the plaintiff filed a regular appeal to the District Court, before the learned District Judge, the defendant raised a preliminary objection to the maintainability of the appeal. He contended that when the trial Court dismissed the suit, it did so in exercise of its powers under O. 17, R. 2 of the C. P. Code, in which event, no appeal lay from that decision. The learned District Judge, however, held that the trial Court's decision should be regarded as one falling under O. 17, R. 3. On this basis, he entertained the appeal. On the merits, he held that the trial Court was not justified in rejecting the request of the plaintiff for an adjournment so as to enable him to produce its witness. In this view, the learned District Judge set aside the decision of the trial Court and remanded the suit for an effective disposal.
2. The defendant has now brought this appeal against the order of remand passed by the learned District Judge. Mr. V. Krishnan, the defendant's learned counsel, urged that, in the circumstances of the present case, the learned District Judge was wrong in holding that the plaintiff's appeal was competent. Learned counsel submitted that the dismissal by the trial court of the plaintiff's suit properly fell under O. 17, R. 2 of the Code and no appeal lay against that decision.
3. O. 17, R. 2 deals with the procedure to be followed by a trail court when parties fail to appear before it on the date fixed for hearing. The rule says that in such an event the court may proceed to dispose of the suit in one or other of the modes directed by Order 9 or to make such other order as it thinks fit. O. 9, so far as is relevant to the facts of the present case, provides in Rule 8 that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed. On a combined reading of the two provisions of the Code, therefore, it may be observed that where on any date to which the hearing of the suit is adjourned the defendant appears by the plaintiff does not appear, then it would be open to the court to make an order that the suit be dismissed. It must, however, be noted that O. 17, R. 2 and O.9, R. 8 can come into play only when the parties, or any of them, fail to appear. Where they do appear before the court, these rules would naturally have no application.
4. It is common ground in the present case that both the parties and their respective counsel were very much present in court on the day when the suit was called. O. 17, R. 2, therefore, cannot apply. The only other provisions in the Code that has to be considered in a situation of this kind is O. 17, R. 3. This rule, as it stood before its recent amendment in 1976, provided for the manner in which the trial court should proceed when either party, although in full attendance before the court, nevertheless fails to prosecute the case. The rule applies in three different situations: (1) Where the party fails to produce his evidence; (2) where the party fails to cause the attendance of his witness; and (3) where the party fails to perform any other act necessary to further the progress of the suit. According to the learned District Judge, it is to this Rule 3 that the trail Court's decision in this case ought properly to be attributed.
5. I agree with the view of the learned District Judge. I do not agree with the argument of Mr. Krishnan, learned counsel for the defendant, that the dismissal of the suit in this case should be equated to a dismissal for default of appearance by the plaintiff. There is a clear-cut distinction between the dismissal for default of appearance and a decision dismissing the suit for other kinds of default. If the plaintiff is absent when a suit is called, it is open to the court to dismiss the suit for default for appearance. Such a dismissal is not a decision in the suit, but a refusal by the court to deal with the suit, because of the absence of the party. Where, however, the plaintiff is present, but for some reason or other, he does not prosecute the suit, then the court is enjoyed under O. 17 R. 3 to 'decide the suit'. The implication of the rule is that if there are some materials before the court at the stage at which the default of the party occurs, then the court is nevertheless obliged to decide the suit on the basis of those materials already on record. But it may well happen that a default may occur on the part of a party who is present in court, and at a time when there are no materials or no adequate materials for the court to proceed upon for the purpose of deciding the suit on merits. Even in such a case, the court has somehow to proceed with the suit, and when it does so it will be only 'deciding' the suit, in terms of the language of O. 17, R. 3. Whereas in this case, the plaintiff being present, commits default, in the sense that he does not get on with the trial by calling evidence, then the court may have no alternative except to dismiss the suit. But even so, what the court does when it dismisses the suit for non-prosecution is to decide the suit. It is a decision in the suit, a decision of the suit and none the less so for its being dismissed for default. If so much is granted, the decision of the court in this case must be regarded as a decree against which an appeal certainly lies. I am, therefore, in agreement with the learned District Judge when he upheld the maintainability of the appeal.
6. Support for this view may be found in more than one decision of this court. In Chandramathi Ammal v. Narayanaswami Iyer, (1910) ILR 33 Mad 241, Wallis and Krishnaswami Aiyar, JJ. were dealing with two comparable provisions in the earlier C. P. Code, 1882. With reference to the inter-relation between the two provisions, the learned Judges observed thus-
"We agree with the contention of Mr. S. Srinivasa Iyengar that Ss. 157 and 158 should, if possible, be read as mutually exclusive. S. 157 deals with cases of failure to appear and S. 158 with the cases of failure to do the thing for which time has been granted". This understanding of the distinction between the two different provisions was approved by a Full Bench of this Court in Pichamma v. Sreeramulu ILR 41 Mad 286 : (AIR 1918 Mad 143 (2)).
7. Mr. Krishnan, however, cited before me two subsequent decisions of this court in an effort to show that notwithstanding the physical presence of the plaintiff and his counsel on the day when the decision was made they must yet be regarded, in the eye of the law, as not being present in the court, so that the appropriate rule for the court to act under would be O. 17, R. 2 and not O. 17, R. 3.
8. The first case cited by the learned counsel was Kaliappa Mudaliar v. Kumarasami Mudali, 51 Mad LJ 290 : (AIR 1926 Mad 971), decided by Phyllips and Madhavan Nair, JJ. That case with a situation where both the defendant and his learned counsel were present before the court, but the defendant was not ready with his witness and his counsel reported 'no instructions'. In those events, the trial court proceeded to dispose of the suit. The defendant then applied to the court to set aside the decree, treating the decree as an ex parte decree. The question before the Bench was whether the defendant's proper remedy would not have been an appeal against the decree. The discussion ranged between O.17, R. 2 and O. 17, R.3. the learned Judges held that when the defendant's learned counsel reported no instructions and withdrew form the case, there was in a proper sense no appearance by the defendant, and the court must thereafter be deemed to have proceeded only under O. 17, R. 2.
9. This decision was followed and applied by Kumaraswami Sastri and Wallace JJ. in a subsequent case reported in Authimoolam Pillai v. Secretary of State (1928) 54 Mad LJ 351. These learned Judges had to deal with the procedural consequences of a situation where a plaintiff, who appeared on the day of hearing, could not produce his witness when the suit was called and his pleader was unprepared to go on with the trial. The trial court proceeded to dismiss the suit, treating the plaintiff's default as a default of appearance. This view was upheld by the Division Bench. The learned Judges permitted themselves, the following general observations :
Where a leader says he is not ready to go on, the dismissal cannot be said to be anything else than the dismissal for default, and the presence of the party in court will not take the case out of the category of dismissal for 'default of appearance'.
10. As a minor matter of interest to students of case law, it may be observed that Wallace J. who was a party to this later Bench decision, had expressed a different view earlier, sitting singly. He said 'As at present advised, I am not prepared to hold that a party, who appears in person when his pleader is absent or, on the instruction of the party, reports no instructions, has not put in an appearance in the case". This was said in a referring judgment which the learned Judge made referring Kaliappa Mudali v. Kumaraswami Mudaliar, to a Division Bench (51 Mad LJ 290 vide pages 292, 293) : (AIR 1926 Mad 971 at p. 972).
11. Mr. Krishnan said I am bound to apply the two Bench rulings of this court while deciding the present case. I have no doubt about the high authority of these rulings but I confess I have gnawing doubts about the correctness of their postulates. Precedents, no doubt, bind Judges and lawyers hand and foot, but there is no rule which says that a Judge, no less than a lawyer, should keep his mouth shut and not articulate his brooding misgivings about earlier authorities. In both the Bench decisions relied on by Mr. Krishnan. The party concerned was present in court in flesh and blood when his counsel reported no instructions. Nevertheless, the learned Judges preferred to hold that the party should be deemed not to have appeared in court. In the earlier decision, it was almost suggested that the defaulting individual might have been present in court as a 'man' but that was not his appearance as a party. This view of parties' appearance in legal proceedings would seem to import the Maya theory in court room realities. I mean no disrespect to the learned Judges, or even to the Maya theory, when I say that it is difficult to visualise how a plaintiff or a defendant can be present in person in court and yet be said to be not in attendance at the hearing. It is further incomprehensible that a practitioner can perform the 'vanishing trick' on his client by simply reporting no instructions to the court. I have always believed that under our court system learned counsel exist for their clients, and not vice versa. The same is true of courts too. Courts exist for litigants an not vice versa. I cannot, therefore, see how a lawyer, who bowing himself out of a case, can, by the same motion, effectively destroy the litigant in his client leaving the matter standard in court as a mere 'man' robbed of his locus standi in the further proceedings.
12. I submit that the postulates of these two Bench decisions cry aloud for a reconsideration. Indeed, an opportunity in that direction did present itself before another Bench of this Court nearly two decades later. Vide Dhakshinamurthi Kandar v. Ponuswami 1948-1 Mad LJ 65 : (AIR 1949 Mad 78). Gentle c. J. and Thyagarajan J, who decided this case, however, avoided a confrontation with and a reconsideration of, the earlier authorities by the simple experiment of distinguishing them on facts. The case before the later Bench was one where a plaintiff as well as his learned counsel were present at the trial. But when the case was called, the plaintiff's counsel reported 'no instructions'. Thereafter, at the request of the plaintiff himself the court adjourned the suit by a day, for enabling him to make other arrangements for representation. The next day the plaintiff appeared in person and filed two applications, one for examination of a witness on commission and the other for adjournment of the suit. The Trial Court refused the adjournment and dismissed the suit. The question was whether the dismissal of the suit would properly fall under O. 17, R. 3 or under O. 9, R. 8. The learned Judges observed that this was a case where the plaintiff was personally present and it did not matter if, on the previous day, his learned counsel had reported 'no instructions'. In this view, they held that the dismissal of the suit would fall squarely within the ambit of O. 17 R. 3, entailing an appeal before the appellate court as an appeal against a decree.
13. With respect, the marks of distinction on which this later Bench decision is founded, do not also bear critical analysis. For instance, I cannot see how a party who ceases to be a party on the day his learned counsel reports no instruction or otherwise abandons him to the tender mercies of the court, can regain his litigant status on the morrow by a bare appearance in person. But then, it seems to me that the learned Judges were hard put to it to ignore the two earlier decisions-and, may be, this was the means they persuaded themselves to adopt for doing justice to the case before them. Whatever the reason be, the way they had set about to distinguish the two earlier Bench decisions has only tended to obfuscate the legal position still further.
14. I have, however, taken heart from the Bench decision last cited in so far as it has tended to isolate the earlier two decisions as turning on their own peculiar facts. It seems to me that the value of the earlier decisions, as precedents, is now so much less, because, notwithstanding the wide language employed in at least one of them, it is now possible to distinguish cases on the basis of different facts, on the authority of Dakshinamurthi Kandar v. Ponnuswami 1948-1 Mad LJ 65 : (AIR 1949 Mad 78).
15. To turn, to the facts of the present case, the plaintiff is a Panchayat, and the suit was for recovery of damages. It was laid on the basis of the report of a Government auditor. At the time of the trial, the auditor had been transferred to some distant place. This was the reason why the plaintiff asked for a adjournment of the trial so as to enable the witness to attend. At that time both the plaintiff and his learned counsel were present. There is no suggestion that the plaintiff's counsel reported 'no instructions' to the court. The trial court nevertheless proceeded, not only to reject the motion for adjournment, but also to dismiss the suit itself for non-prosecution. In the events that happened, I think I am at perfect liberty to distinguish the present case from the earlier Bench decisions and hold that the dismissal of the suit by the trial court was not under Order 17 Rule 2, but only under O. 17, R. 3.
16. Mr. Krishnan argued that the only difference between the two bench decisions reported in Kaliappa Mudaliar v. Kumarasami Mudaliar 51 Mad LJ 290 : (AIR 1926 Mad 971) and Authimoolam Pillai v. Secretary of State (1928) 54 Mad LJ 351 on the one hand and the present case on the other is that in the present case, the plaintiff's learned counsel did not report 'no instructions' in so many words. This, according to learned counsel, does not constitute a distinction with a difference. I am unable to accept this submission as valid. For much the same criticism can be made of Dakshinamurthi Kandar v. Ponnusami 1948-1 Mad LJ 65 : (AIR 1949 Mad 78) as well. But no one can deny that this decision also now holds the field.
17. At the end of all this discussion, it seems to me that in a matter arising under O. 17, R,3 of the Code, one can only safely proceed on the particular facts of the case to find out if the default in question is one of a kind for which the said rule expressly provides. If the facts show that the plaintiff was present, but being present had committed one or other of the defaults mentioned in the section, then the court proceeds only under O. 17, R. 3. In such a case, by definition, it cannot proceed under O. 17, R. 2. Applying this test, I am satisfied that what the trial court did in this case when it dismissed the suit for non-prosecution was a decree and was appealable as such.
18. In closing, I am unable to resist the thought that had the trial court granted the adjournment prayed for by the plaintiff, even if for a short while, in order to enable the witness to attend, all these subsequent problems might well have been avoided. As it happened, while the decision of the trial court dismissing the suit for non-prosecution amounted to a decree, and the learned District Judge entertained the plaintiff's appeal against that decree, he was nevertheless not in a position to render any worthwhile decision in the appeal on merits for the reason that there was nothing in the trial court's decree to operate upon. The learned District Judge had perforce to send the case back for a fresh disposal. In the events that happened, I endorse this decision of the learned District Judge, as the proper one.
19. The civil miscellaneous appeal is accordingly dismissed. There will however be no order as to costs.
20. Appeal dismissed.