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Satish Chandra Mukerjee Vs. Ahara Prasad Mukerjee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1907)ILR34Cal403
AppellantSatish Chandra Mukerjee
RespondentAhara Prasad Mukerjee
Cases ReferredWatson & Co. v. Ambika Dasi
Excerpt:
appearance - appeal--adjournment, application for--dismissal for default--re-admission--civil procedure code (act xiv of 1882) sections 556, 558. - rampini, j.1. this is an appeal against an order of the district judge of birbhum, passed on an application under section 558 of the civil procedure code for the re-admission of an appeal. the facts are that on the day fixed for the bearing of the appeal, viz., the 22nd august 1905, the appellant's pleader applied for time, and stated that he was unable to argue the appeal. time was not allowed, and the appeal was dismissed. on the 15th november following, the appellant prayed for the re-admission of the appeal on the ground that he had been prevented by sufficient cause from prosecuting his appeal, but the learned judge declined to go into the merits of the application, and considered himself bound by the ruling of this court in the case of watson & co. v. ambika dasi (1899) 4 c.w.n. 237.....
Judgment:

Rampini, J.

1. This is an appeal against an order of the District Judge of Birbhum, passed on an application under Section 558 of the Civil Procedure Code for the re-admission of an appeal. The facts are that on the day fixed for the bearing of the appeal, viz., the 22nd August 1905, the appellant's pleader applied for time, and stated that he was unable to argue the appeal. Time was not allowed, and the appeal was dismissed. On the 15th November following, the appellant prayed for the re-admission of the appeal on the ground that he had been prevented by sufficient cause from prosecuting his appeal, but the learned Judge declined to go into the merits of the application, and considered himself bound by the ruling of this Court in the case of Watson & Co. v. Ambika Dasi (1899) 4 C.W.N. 237 to hold that Section 558 did not apply.

2. The appellant now appeals to this Court, and reliance is placed principally on the case of Cooke v. The Equitable Coal Company (1904) 8 C.W.N. 621, in which a contrary rule to that laid down in the case relied on by the District Judge has been enunciated.

3. The learned pleader, who appears on behalf of the appellant, has also cited the following cases in support of his contention that, when an application for adjournment is made and refused, and the case is then dismissed, the order of dismissal is one passed ex parte, and that, if the case is an appeal, the provisions of Section 558 of the Civil Procedure Code are applicable, viz.,Administrator-General of Bengal v. Dayaram Das (1871) 6 B.L.R. 688, Buldeo Misser v. Ahmed Hussain (1871) 5 W.R. 143, Ram Pertab v. Jakeeram Agurwalla (1896) I.L.R. 23 Calc. 991, Hinga Bibi v. Munna Bibi (1903) I.L.R. 31 Calc. 150, Palta Persad v. Nand Kishore (1899) I.L.R. 22 All. 66 and Soonder Lall v. Goorprasad (1898) I.L.R. 23 Bom. 414.

4. On the other hand, the respondent's pleader can only cite in favour of his argument the additional case of Ram Chandra Pandurang v. Madhav Purushuttom Naik (1891) I.L.R. 16 Bom. 23, which is the case referred to in Watson v. Ambika Dasi (1899) 4 C.W.N. 237.

5. There is one other case that may be alluded to, viz., Patinhart Tarkatt Rama Mannadi v. Vellur Kriahnan Menon (1902) I.L.R. 26 Mad. 267, in which it has been held that, though a mere application for an adjournment by a pleader, who is not instructed to proceed with an appeal, is an appearance, the Court dismissing the appeal is bound to dispose of the case on the merits and write a judgment.

6. The point is one not altogether free from difficulty, as is evidenced by the conflicting rulings of the High Courts above cited. But the general consensus of opinion would seem to be against the rule laid down in Watson v. Ambika Dass (1899) 4 C.W.N. 237, and in favour of the view expressed in Cooke v. The Equitable Coal Co. (1904) 8 C.W.N. 621.

7. There is this difference between the two cases, that in the former case the application for restoration was made under Section 558, and in the latter under Section 108. But there would seem to be no difference in principle between the two cases. In both cases the question is whether an appearance by a counsel or pleader instructed to apply only for an adjournment is an appearance within the meaning of the Code, and whether in such a case the suit or appeal can be dismissed for default. The two cases are in conflict, and we are constrained to refer this appeal to a Full Bench, and to submit for their decision the following questions, viz.

(i) Whether an application by a counsel or pleader, who is instructed. only to apply for an adjournment, which is refused, is an appearance within the meaning of the Code, and when in such circumstances an appeal is dismissed, whether the dismissal is one for default under Section 556, so as to entitle the appellant to apply for re-admission under Section 568 of the Civil Procedure Code.

(ii) Whether the case of Watson v. Ambika Dasi (1899) 4 C.W.N. 237 has been rightly decided.

8. I would add that I was a member of the Bench that decided the case above referred to. The difficulty that presented itself to me in that case was that it seemed anomalous that an application for a postponement should, if allowed, be held to be an appearance; whereas, if refused, it should not be an appearance. Further, if it be argued that in the latter case the appearance ceased to be an appearance, when the counsel or pleader declined to go on with the case or left the court, the same would have to be held when the pleader or counsel having partially pleaded his case, finding the Court against him, left the Court without finishing his argument. In such a case it would be undesirable that the Court should be compelled to proceed ex parte or dismiss the appeal for default.

9. In the face, however, of the numerous rulings of this and other High Courts adverse to the rule laid down in Ram Chandra Pandurang v. Madhav Purushuitom (1891) I.L.R. 16 Bom. 23 and Watson v. Ambika Dasi (1899) 4 C.W.N. 237, and being impressed with the desirability of uniformity in the rulings of this Court, I do not wish to press my views further, but I am prepared to concur with my learned brother in answering the first part of the first questioned the second question above propounded in the negative, and the second part of the first question in the affirmative.

Mookerjee J.

10. I agree that the questions stated in the opinion recorded by my learned brother should be referred for decision to a Full Bench. As the questions ate of some importance, and as the matter has been exhaustively argued by the learned vakils on both sides, I shall examine the various authorities on the subject, and indicate the view which I am disposed to take.

11. The appellant before us was the appellant in an Appeal from Original Decree in the Court of the District Judge of Birbhum. The appeal was set down for hearing on the 22nd August 1905. He alleges that on that date both the pleaders engaged by him to argue the appeal were absent from Court; he consequently engaged a new pleader, and, as it would take some time to explain the case to him, instructed him to apply for an adjournment. The application was made and refused. The pleader thereupon stated to the Court that he was unable to argue the appeal, and as the appellant himself was not present, the appeal was dismissed with costs. On the 19th September, the appellant made an application, which purported to be one under Section 558 of the Civil Procedure Code, for re-admission of the appeal. Objection was then taken on behalf of the respondent, that as the pleader for the appellant had appeared and asked for time, the Court had no jurisdiction under Section 558 of the Civil Procedure Code, to readmit the appeal. Upon the authority of the case of Watson v. Ambika Dasi (1899) 4 C.W.N. 237, the District Judge held that this objection was well founded, and dismissed the application without any investigation of the merits. The validity of this order is called in question in the appeal presented to this Court, and it is argued that the District Judge has refused to exercise the jurisdiction vested in him under Section 558 of the Civil Procedure Code. As there has been no investigation into the merits by the Court below, we have to assume, for the decision of the question of jurisdiction, that the allegations made by the appellant are true. As stated in the opinion of my learned brother, there has been some divergence of judicial opinion upon the matter; but before I refer to the cases on the subject, it is desirable to examine the provisions of the Code, which bear upon the question.

12. Section 556 of the Civil Procedure Code provides that, if on the day fixed for hearing the appeal, or any other day to which the hearing may be adjourned, the appellant does not attend in person, or by his pleader, the appeal shall be dismissed for default; and it is also provided that, if the appellant attends and the respondent does not attend, the appeal shall be heard ex parte in his absence. Section 558 of the Civil Procedure Code then provides that in the case of a dismissal under Section 556 of the Civil Procedure Code, the appellant may apply for re-admission, and if it be proved that he was prevented by any sufficient cause from attending, when the appeal was called on for hearing, the Court may re-admit the appeal on terms. Similar provisions are to be found in Sections 98, 99, 100, 102, 103, 108 and 157 of the Civil Procedure Code; the language used is, however, slightly different, as in these Sections the term used is 'appear' and not 'attend'; but it is difficult to see that there is any substantial difference in principle between these sections, and the cases upon these sections, to which I shall presently refer, do not support any distinction on this ground.

13. One of the earliest cases in this Court, is that of Administrator General v. Dayaram (1871) 6 B.L.R. 688. There the defendant had filed a written statement in a suit, and when the case was called on for final disposal, an application for adjournment was refused, and counsel stated that he had no instructions to go on with the case. The suit was heard ex parte and a decree given in favour of the plaintiff. The defendant then applied to set aside that decree and to have the suit re-heard. It was held by Mr., Justice Paul that there was no appearance by the defendant personally or by counsel or attorney, and the decree must be treated as an ex-parte decree, so as to make the provisions of Section 119 of Act VIII of 1859 applicable. In addition to the contention that appearance by counsel on the day of hearing and application for postponement of the suit, constituted sufficient appearance within the meaning of the law, it appears to have been also argued, on behalf of the plaintiff, that, as the defendant had appeared in the suit, the decree could not be treated as ex parte; this extreme contention was overruled, and the point is now settled by the decision of a Full Bench of this Court in Janardan v. Ramdhone (1896) I.L.R. 23 Calc. 738. The decision of Mr. Justice Paul was referred to, apparently with approval, by the Judicial Committee in Zainulabdin v. Ahmed Besa (1878) L.R. 5 I.A. 233.

14. The next case in this Court is that of Buldeo Misser v. Ahmed Hussain (1871) 15 W.R. 143. There an appeal was called on for hearing. One of the pleaders was absent from illness, and the other asked for a postponement, which was refused; he then refused to proceed with the appeal. The Judge looked into the facts of the case with such light as he could obtain from other sources, and dismissed the appeal, stating that he bad come to the conclusion that the appeal was not a valid one. Jackson and Ainslie, JJ. held that the appeal must be looked upon as having been dealt with on default, and that it was competent to the appellant to apply for a re-hearing. This decision was referred to with approval by Couch C.J. and Glover J. in Mohesh Chunder v. Thakur Dass (1878) 20 W.B. 425, the learned Chief Justice observing that it ought to have occurred to the Judge that it was not a satisfactory way of considering or of deciding upon the merits, when he did not hear what the appellant had to say in support of his case. I refer specially to this observation, in view of a recent decision of the Madras High Court, upon which great reliance was placed by the learned vakil for the respondent, and which will be examined later on.

15. In the case of Dhan Bhagat v. Ramessur (1878) 20 W.R. 53, Phear and Ainslie JJ. adopted a view different from that taken in the cases mentioned above. The learned Judges appear to have held that if a duly authorised vakil appears for a defendant, who is himself not present in Court, but does not argue the case, because be is not sufficiently instructed to proceed with it, the decree passed is not an ex parte decree. No reasons for this conclusion are given in the judgment, and the attention of the learned Judges does not appear to have been invited to the earlier cases in this Court, to one of which Mr. Justice Ainslie was a party. The view taken in the earlier case, Buldeo Misser v. Ahmad Hussain (1871) 15 W.R. 143, was, however, adopted as sound in Shibendra Narain v. Kinooram (1886) I.L.R. 12 Calc. 605, in which McDonell and Beverly JJ. held that if, when an appeal is called on for hearing, the pleader is present but not prepared to go on with the case, and the appeal is consequently dismissed, the dismissal is one for default within the meaning of Section 556 of the Civil Procedure Code. The same view appears to have, been assumed as well founded by Beverly and Jenkins JJ. in Anwar Ali v. Jaffer Ali (1896) L.I.R. 23 Calc. 827, though the view taken by them, that an order of dismissing an appeal under these circumstances being an order of dismissal for default, is not appealable, has been subsequently overruled by a Full Bench of this Court in Radhanath Singh v. Chandi Charan Singh (1918) I.L.R. 80 Calc. 660, 662. It may be observed that the order of dismissal, which had to be considered in this last case, was one made, because the pleader for the appellant was not prepared to go on with the appeal (2); and this is referred to by the learned Judges, who constituted the Full Bench, as an order of dismissal for default, i.e., the non-appearance of the appellant.

16. The case of Ram Pertab Mull v. Jakeeram (1896) I.L.R. 23 Calc. 991, Which was decided by Mr, Justice Ameer Ali, appears to me to support the position, that a dismissal, under circumstances similar to those stated before, amounts to dismissal for default. The passage at page 995 of the Report perhaps indicates that the learned Judge-had doubts upon the matter, but, after stating that the plaintiff was present, had instructed counsel to apply for adjournment, and upon refusal of the application, took no further steps, he proceeded to observe as follows:--''It is by no means clear that the plaintiff has brought himself within; the provisions of Section 102 of the Code; but having regard to the wide terms in which Sections 102 and 103 of the Civil Procedure Code, are couched, I am not prepared to hold that the applications do not come within Section 103.' The learned Judge then proceeded to consider whether, assuming that the applications came within Section 103 of the Civil Procedure Code, sufficient cause had been made out for the alleged non-appearance. He came to the conclusion that in the case of three out of the four applications, no grounds had been established for setting aside the order of dismissal, whereas in the other case sufficient cause had been made out. He, therefore, dismissed three of the applications, allowed the fourth application, and directed that the suit, in which it had been made, be re-heard. It appears dear, therefore, that the statement contained in the head-note to the report of the case is not accurate.

17. The next case in this Court, which requires consideration, is that of Watson v. Ambika Dasi (1899) 4 C.W.N. 237. In this case the pleader for the appellant asked for an adjournment. The application was refused: appraently, the pleader then refused to argue the appeal, which was consequently dismissed. The learned Judges held, following the decision of the Bombay High Court in Ram Chandra v. Madhav (1891) I.L.R. 16 Bom. 23 that the dismissal was not one under Section 556 of the Civil Procedure Code, and an application for re-admission under Section 558 of the Civil Procedure Code, was, therefore, not maintainable. The case of Shibendra Narain v. Kinooram (1886) I.L.R. 12 Calc. 605 was distinguished on the ground that there the pleader had simply stated that he was not prepared to go on with the case, and had not made an application for postponement. It may be observed, however, that this does not make any substantial difference in principle, or in the mode in which the appeal is dealt with. If a pleader is instructed to apply merely for adjournment, and upon refusal of the application refuses to conduct the case on the ground that he is not prepared to do so, the position at that moment becomes identical with the position in the case in which the pleader, as soon as the case is called on,l informs the Court that he has no instructions to proceed with it. Even if, therefore, it be held that an appearance by counsel or pleader solely for the purpose of applying for adjournment, technically constitutes an appearance in law, such appearance would cease as soon as the limited purpose, for which it was made, had been exhausted. A subsequent dismissal of the, case on the ground that there was no one to proceed with it, would be, in substance as well as in form, a dismissal for default.

18. The next case in this Court, which bears upon the question before us, is that of Cooke v. Equitable Coal Co. (1904) C.W.N. 621, in which doubts were expressed as to the correctness of the decision in Watson v. Ambika Disi (1899) 4 C.W.N. 237. The learned Chief Justice held that, where a pleader is only instructed to make an application practically for an adjournment, and upon refusal of that application, leaves the Court and takes no part in the hearing of the case, the decree passed cannot be regarded as other than an ex-parte decree; and it was pointed out that the Full Bench case of Janardan Dobey v. Ramdhan Singh (1896) I.L.R. 28 Calc. 738, although not precisely in point, in principle points strongly in favour of this view. This decision was followed by me in the case of Rajkishore Roy v. Raja Ramranjan (1905) 1 C.L.J. 760.

19. The view set forth above was adopted by Mr. Justice Sale in Hinga Bibi v. Munna Bibi (1908) I.L.R. 31 Calc. 150, in which it was ruled that an appearance by counsel on the calling on of a case, merely to ask for an adjournment, is not such an appearance in the suit as will render Sections 102 and 103 of the Civil Procedure Code inapplicable, if, upon refusal of the application, counsel does not proceed with the case because he has no instructions to do so.

20. Upon a review then of the cases in this Court, there is manifestly a large balance of authorities in favour of the view which the appellant in the case before us invites us to adopt.

21. As regards the cases in the Bombay High Court, the decisions in Bhimacharya v. Fukirappa (1867) 4 Bom. H.C. 206 and Soonder Lal v. Goor Prasad (1898) I.L.R. 23 Bom. 414 support the contention of the appellant, whereas Ram Chandra v. Madhav (1891) I.L.R. 16 Bom. 23 favours the view urged, by the respondent. In the first of these cases, which was that of an ex-parte decree against a defendant, the decision was based on the ground that, under the Code, the summons issued to the defendant calls upon, him to appear and answer the claim in person or by a pleader duly instructed and able to answer all material questions relating to the suit; where, therefore, there is a pleader physically present, who is not in a position to conduct the case, there is no representation of the defendant so as to give to the suit the character of a defended action. This reasoning appears to me to be sound, but it is not necessary to base it on the terms of the summons issued to a defendant under the provisions of the Code. The principle applies quite as much to a plaintiff as to a defendant, and when either party to a litigation is represented by a pleader, it is upon the assumption that the pleader is duly instructed and able to answer all material questions relating to the suit. If, therefore, the mere physical appearance of the pleader was treated as appearance within the meaning of the Code, the policy of the law and the course of justice would both be defeated. Substantially the same view was taken by Mr. Justice Strachey in Soonder Lal v. Goor Parsad (1898) I.L.R. 23 Bom. 414, though I would hesitate to accept all the observations made by the learned Judge at page 422 of the Report. As regards the case of Ram Chandra v. Madhdv (1891) 1.L.R. 16 Bom. 23, in which the contrary view was taken, it may be observed that one of the learned Judges was prepared to hold that, if a case is dismissed by reason of refusal on the part of the pleader to argue the case, it might be a dismissal for default.

22. As regards the Allahabad High Court, there is a large preponderance of authorities in favour of the view urged by the appellant: see Hira Dai v. Hira Lal (1885) I.L.R. 7 All. 538, Ramtahal v. Rameshar (1886) I.L.R. 8 All. 140, Shankar Dat v. Radha Krishna (1897) I.L.R. 20 All. 195 and Latta Prasad v. Nand Kishore (1899) I.L.R. 22 All. 66. The decision of the Judicial Committee in Radha Kissen v. Collector of Jaunpore (1900) I.L.R. 23 All. 220, which affirmed the decision of the Allahabad High Court in Shankar Dat v. Radha Krishna (1897) I.L.R. 20 All. 195, appears to point in the same direction. Indeed, it does not appear to have been disputed that the order in that case was an ex-parte one, although a pleader had appeared and informed the Court, that he had no instructions to proceed with the case. In Lalta Prasad v. Nand Kishore (1899) I.L.R. 22 All. 66, Sir Arthur Strachey C.J. pointed out, that if the plaintiff appeared by pleaders, who were not duly instructed and able to answer all material questions relating to the suit, if they were instructed only to apply for an adjournment, there was in substance no appearance at all. In the same case, Mr. Justice Banerjee pointed out that there was a consensus of rulings in favour of the view, that the party represented by a pleader without instructions, must be deemed not to have appeared. The derision in the case of Chirangi Lal v. Kundan Lal (1898) I.L.R. 20 All. 294 purports to brave been based upon its own special facts, and the correctness of the rule laid down in Shankar Dat v. Radha Krishna (1897) I.L.R. 20 All. 195, was not called in question. I am unable, however, to hold that the case was correctly decided; the order of dismissal showed on the face of it, that the appeal was not supported, and the order of dismissal was in substance an order of dismissal for default.

23. Our attention was invited to only one case in the High Court of Madras, Patinhare v. Vellur (1902) I.L.R. 26 Mad. 267. In this case, upon an appeal being called on for hearing, the pleader appeared and asked for an adjournment on the ground that he had no papers and was not prepared to argue the case. The application was refused and the appeal was dismissed. Bhashyam Ayyangar and Moore JJ. held that the appeal ought not to have been dismissed as for default, but that the Judge was bound to write a judgment and ought to have disposed of the appeal; in support of this view, reliance was placed upon the case of Ram Chandra v. Madhav (1891) I.L.R. 16 Bom. 23. In my opinion the conclusion is logical, but shows effectively why this view ought not to be accepted, If, under the circumstances stated, the Court holds that there is an appearance on the part of the appellant, the appeal has to be disposed of on the merits, and I agree entirely with the observations of Sir Richard Couch C.J., in Mohesh Chandra v. Thakur Das (1873) 20 W.R. 425, as to the impropriety of considering or deciding upon the merits of a case, when the Judge has no opportunity of hearing what the appellant has to say in support of it.

24. In the Chief Court of the Punjab, it appears to be the settled rule that, where a counsel has instructions to apply merely for an adjournment, if upon refusal of the application the case is not argued, there is no appearance within the meaning of the law: see the decision of Sir William Clarke C.J. in Gurdit Singh v. Sohan Singh (1904) 6 Punj. L.R. 595.

25. It is clear, therefore, that the current of authorities is decidedly in favour of the contention urged by the appellant, which also appears to be consistent with the rule adopted in England. It is sufficient to refer to the decision of Fry J. in Robinson v. Chadwick (1878) 7 Ch. D. 878. There, at the trial, the plaintiff did not appear in person, but counsel appeared on his behalf and asked for an adjournment; the application was refused; thereupon counsel for the plaintiff declined to proceed. Mr. Justice Fry held that he could only deal with the case as if the plaintiff had not appeared at the trial, as indeed, in substance, he had not; and the learned Judge made an order for dismissal under Rules of Court, 1875, Order XXXVI, Rule 19 (corresponding to Rules of Court, 1883, Order XXXVI, Rule 32).

26. The practice in England has been generally adopted in the American Courts. Thus in Cahill v. Hilton (1883) 31 Hun. (N.Y.) 114 where, after an application by a defendant for postponement to enable him to produce a witness had been refused, counsel refused to go on with the trial, it was held that the decision was ex parte, and might be set aside, if sufficient ground was established to explain the default. Similarly in Forster v. Capwell (1886) 1 Hilton (N.Y.) 47 where the defendant was present in Court, but did not hear the cause called on, it was held that the decision was ex parte, because there was in substance no appearance on behalf of the defendant. As pointed out, however, in Freeman on Judgments, Section 105 (Volume I, page 155), there has been a considerable difference of opinion in some jurisdictions as to what constitutes appearance on the part of a litigant, and, in some cases, it has even been held, that where appearance has been entered on behalf of a party, he may be taken to be constructively present at the trial.

27. Upon an examination of the authorities referred to, and of the principle upon which they are based, I am disposed to adopt the view taken in the case of Cooke v. Equitable Coal Co. (1904) 8 C.W.N. 621. The term 'appearance' is nowhere defined in the Code, and, as pointed out by Benson J. in Seeley v. Evans (1838) 19 Wendell (N.Y.) 459, has several significations; the word must always be understood in reference to the particular subject-matter to which it relates, and the purpose or end to be answered by the appearance has an important bearing in determining what is sufficient to constitute appearance in a particular case. It seems to me that, having regard to the scope of Section 556 of the Civil Procedure Code, and the object to be gained by the attendance or appearance of the appellant on the day fixed for the hearing of the appeal, the mere appearance of counsel to make an application for adjournment ought not to be treated as appearance so as to oust the jurisdiction of the Court to make an order for re-admission under Section 558 of the Civil Procedure Code, if proper cause is shown. Upon refusal of the application for adjournment, if counsel declines to go on with the case, there is at that time no appearance on behalf of the party.

28. I do not feel much pressed by the reference made to the case in which evidence may have been taken and which has been partially argued. As pointed out by Jenkins C.J. in Ningappa v. Gowdappa (1905) 7 Bom. L.R. 261, Section 102 of the Civil Procedure Code could hardly have been intended to apply to a case of this description.

29. Babu Naliniranjan Chatterjee (with him Babu Rajendra Chandra Chakravati) for the appellant. As there was no time to explain the papers and give full instructions to the newly-engaged pleader on the date of hearing of the appeal, he was instructed simply to apply for an adjournment. The application was made and refused, and the appeal was dismissed; this I submit was no appearance in the case within the meaning of the Code of Civil Procedure, and the appellant is entitled to have his appeal readmitted under Section 558 of the Code: Cooke v. The Equitable Coal Co. (1904) 8 C.W.N. 621. [He was stopped.]

30. Babu Khetter Mohan Sen (for Babu Sarat at Chunder Basak) for the respondents. The question is one of fact, viz., whether the newly-instructed pleader had full instructions to argue the appeal on its merits. The vakalatnamah, which was duly accepted and signed by the pleader, shows that he was authorised to conduct the whole case. [Geidt J.--The order shows that there was no decision on the merits.] In this case a pleader did attend on behalf of the appellant; and the term 'attend,' and not 'appear,' occurs in Section 556 of the Code; and it cannot be said that 'attendance' necessarily means attendance under full instructions to argue the appeal. As regards the authorities cited against me in the order of reference, most of them are distinguishable from the present case, they having reference to original suits, and not appeals. In Dhan Bhagut v. Ramessur Dutt Singh (1873) 20 W.R. 53 it was held, that when a vakil appeared under a duly authorised vakalatnamah, although he was not sufficiently instructed to procced with the case and a decree was passed on such appearance, it was not an ex-parte decree; and one of the learned Judges (Ainslie J.), who decided the case of Buldeo Misser v. Ahmed Hossein (1871) 15 W.R. 143, which is against me, took a contrary view in Dhan Bhagat v. Ramesgur Dutt Singh (1873) 20 W.R. 53. The decision in the case of Cooke v. The Equitable Coal Co. (1904) 8 C.W.N. 621 is also in respect of an original suit.

31. The finding of the Full Bench was as follows:

Maclean, C.J.

32. I entertain no doubt as to the manner in which the question submitted to us ought to be answered. I was a party to the decision in which we dealt with this question in the case of Cook v. The Equitable Coal Co. (1904) 8 C.W.N. 621. Nothing I have heard this morning induces me to resile from the view then expressed. All the authorities upon the matter have been very carefully collected and dealt with by one of the learned Judges, who made the present reference, and his opinion, in fact the opinion of both the referring Judges, is in support of the view I am now about to express.

33. The first question is 'whether an application by a counsel or pleader, who is instructed only to apply for an adjournment, which is refused, is an appearance within the meaning of the Code?' The language of Section 556 is 'attend' and not 'appear,' but for present purposes I think the terms are practically synonymous. I answer that question in the negative.

34. The second question is 'where in such circumstances an appeal is dismissed, whether the dismissal is one for default under Section 556 so as to entitle the appellant to apply for readmission under Section 558 of the Civil Procedure Code?' I answer that question in the affirmative.

35. The last question is 'whether the case of Watson & Co. v. Ambika Dasi (1899) 4 C.W.N. 237 has been rightly decided.' I answer that question in the negative.

36. 'We must send the case back to the referrin Bench with this expression of our opinion.

37. The appellant will have the costs of this hearing before the Full Bench.

Harington, J.

38. I agree. I do not see how a pleader can be said to attend at the hearing, merely because, before the hearing begins, he comes and asks the Court that there may be no hearing. The hearing does not begin till his application is disposed of.

Brett, J.

39. I agree in answering the questions in the manner laid down by the learned Chief Justice.

Mitra, J.

40. I also agree.

Geidt, J.

41. I also agree.


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