1. This is an application by the plaintiff in Original Suit No. 164 of 1912 to revise an appellate order of the District Judge of North Arcot. The suit was originally posted for final hearing to the 4th December 1912 and was adjourned to the 20th February 1913 by the Court for want of time. On the 20th of February the I leaders for the plaintiff and the defendants were present, but neither of the parties were present. The plaintiff had taken out summonses for his witnesses on the 12th February for the bearing on the 20th, but they did not attend. It appears that one of them was served and the other was not. What happened on that day is stated by the Trial Judge in his original order, which is as follows:
Plaintiff's Pleader stated that his witnesses have not come. He applied for summons late and the summons issued has not yet been returned for want of time. Plaintiff must take the consequence. Plaintiff does not appear. Defendants, too, do not appear. Their Pleaders say that the parties did not go to them. I see no good ground to grant any more adjournment. The suit is, therefore, dismissed Parties to bear their own costs.
2. The plaintiff applied for the restoration of the suit under Order IX, Rule 4, treating the order passed on the 20th February as one made under Order XVII, Rule 2. The first Court rejected the application holding that the dismissal of the suit was not for default of appearance, but was a dismissal on the merits for want of evidence. On appeal the District Judge rejected the appeal on the same ground. He also held that the previous disposal was under Order XVII, Rule 3. The present petition is to revise the above order and the question is, whether the dismissal of the suit on the 20th February was for default of appearance of the plaintiff or a dismissal on the merits for want of evidence. 1 may say at once that the Appeal Judge was in error in holding that the disposal was under Order XVII, Rule 3, for in this case time was not given to the plaintiff to do any of the acts specified in Rule 3, the adjournment of the suit was to suit the convenience of the Court and was merely a re-posting of the suit; but this does not necessarily determine the question, for a Court may have power to determine the suit on the merits under Orders XVII and XX if the parties appear either personally or through their Pleaders duly instructed on their behalf, even though no time may have been given to any of the parties to do the acts specified in Order XVII, Rule 3. The question, therefore, in this case is whether there was a default of appearance on the part of the plaintiff. If there was, the Court can only dispose of the suit under Order XVII, Rule 2 [Chandramathi Ammal v. Narayanasami Iyer 5 Ind. Cas. 23]. In Gopala Row v. Maria Susaya Pillai 30 M.K 274, it was held in circumstances substantially similar to the present case that there was no appearance of the plaintiff. In that case the Pleader for the plaintiff who asked for an adjournment of the suit, which was refused, is said to have stated to the Court that he was unwilling to proceed with the case. In this case it is said the plaintiff's Pleader did not say that he had no instructions to proceed. I do not think this makes any difference. Without going so far as to say that in no case there can be an appearance by a plaintiff through his Pleader if the Pleader is unable to proceed with the case without an adjournment, I hold on the facts of this case, following the decision in Gopala Row v. Maria Susaya Pillai 30 M.K 274, that there was no appearance of the plaintiff after the adjournment was refused. The learned Pleader for the petitioner laid some stress on the use of the word order' and also on the fact that no separate decree was drawn up. I do not attach much importance to this though I do not ignore it; if a decree had been drawn up, the plaintiff might conveniently have preferred an appeal, which it is said is the only course open to him, I note, however, that the Trial Judge appears to have held that one of the parties at any rate, viz., the defendants, did not appear although their Pleaders were present; for I find he has not given any costs to the defendants. As both the lower Courts have held that the application of the plaintiff was incompetent I set aside the order of the lower Appellate Court and direct that the appeal be heard on the merits. The respondents must pay the costs of the petitioner in this Court.