D. Basu, J.
1. This Rule is directed against an order of dismissal of an application under Order 9 Rule 9 of the Code of Civil Procedure which has been affirmed by the learned District Judge. Howrah.
2. The original suit, namely, Title Suit No. 79 of 1959 was m-ought by the plaintiff, a lady, for setting aside a kobala on allegations of fraud. The date fixed for peremptory hearing of the suit was February 8, 1960. On the 6th of February, the plaintiff tiled a petition for adjournment or, rather, for shifting the date of peremptory hearing on the ground that the lawyer already existing on the record, Shri Jitendra Nath Chowdhury, was unable to conduct her case owing to old age and ill health and that she had engaged a senior lawyer Shri Kanai Lal Ghose for the purpose; but, because Shri Ghose was engaged in other cases fixed on the date ofhearing of this case, that is, February 8, 1960, the plaintiff was seeking for a postponement of the date of hearing. On the 6th, nobody appeared to move the petition for shifting the date of hearing and the court put it up for orders on the 8th. On the 8th, Shri Ghose appeared and moved the petition which was, however, refused and the court directed that the suit should be heard on the merits later in the day. But Shri Ghose did not appear again, nor did any other lawyer appear on behalf of the plaintiff and the suit was, accordingly, dismissed for default. The petition of the plaintiff under Order 9, Rule 9 of the Civil Procedure Code for setting aside the order of dismissal for default was dismissed by the learned Munsif on the ground that 'neither the plaintiff nor her lawyer Jiten Chowdhury had any sufficient or even reasonable ground for not appearing before the court when the case was taken up for hearing'. As regards Shri Ghose the observation of the learned Munsif is as follows:
'The only other reason for the plaintiffs non-appearance at the time when the case was taken up for p. (Peremptory) hearing is the other engagement of the lawyer Kanaibabu and his inability to prepare the case. But the record does not prove that Kanaibabu was actually engaged on 6-2-60 and admittedly no vokalatnama was filed appointing him as a lawyer in the present case. Even if it be a fact that Kanai Babu was approached on 6-2-60 for conducting the case and he at once expressed his inability to prepare the (case) within 8-2-60 still this cannot be sufficient reason for non-appearance.'
On the above materials, the learned Munsif went to the extent of observing as follows :--
'..... the fact of the present case disclose the tendency to have adjournments on flimsy grounds and when such adjournments are rejected to abstain from appearing on the belief that restoration of dismissed suits would be achieved as a matter of course I think that such a practice should not be encouraged by allowing the present restoration case as no reasonable or sufficient cause has been proved by the plaintiff.'
3. I would have been happy to agree with this observation for, tro court should encourage adjournments on flimsy grounds. But to approach a case on a priori considerations such as this is likely to lead to gross injustice and in the refusal of justice to deserving cases rather than to suppress flimsy excuses. We have, therefore, got to decide whether the facts of this case warrant such a reflection.
4. When we come to the judgment of the lower appellate court, the learned Judge seems to hold that, even if Shri Ghose was otherwise engaged on the 8th, the plaintiff should have had her case conducted by the earlier lawyer Shri Chowdhury. On this point, the observations of the Judge are as follows:
'The learned Munsif observed in his order rejecting the prayer for adjournment that there was another lawyer for the plaintiff and so, there was no difficulty even if Kanai Babu (Ghose) was unable to conduct the suit. It is clear from the evidence and the circumstances that even the senior lawyer might be able to conduct the caseif there was earnestness for the prosecution of the suit.'
Without more, it is established from the facts as stated by the two courts below that so far as the original lawyer Shri Chowdhury was concerned, though he had not given up his engagement and had continued to be a lawyer even up to the miscellaneous case stage, he did not perform his duty to move the petition for shifting the date on the 6th of February. Whether we believe or not in the plaintiff's story of the illness of Shri Chowdhury, his age is 68 as recorded in his deposition and he has stated in his evidence that 'I expressed my inability to appear and asked the plaintiff to engage Kanailal Ghose as her lawyer'. It is quite clear that, even on the 6th of February, though he did not give up the plaintiff's case, he did not appear in court to perform his normal duties, namely, to move the petition for shifting the date which, presumably, had been drafted by himself just as the petition under Order 9 Rule 9 has admittedly been.
5. So far as Shri Ghose is concerned, it is evident that he could somehow manage to appear before the court to move the petition of adjournment on the 8th February, but, after he had failed in that attempt, he did not turn up again to conduct the original suit. Whether he was actually engaged in other cases or not may be another consideration. But I can hardly imagine the situation that a responsible senior lawyer would pray for adjournment in a suit on the ground that he was otherwise engaged but would not come up before the Court again, when after the rejection of the prayer for adjournment, the court directed a hearing of the suit,--simply to say that he had no other alternative than to retire from the case so that the Court might have been apprised of the situation.
6. In the facts of this case, there is no doubt that the plaintiff has been let down by two of her lawyers senior enough. The question is whether the plaintiff herself was guilty for placing herself in this uncomfortable situation. My attention has been drawn to the fact that the plaintiff, a widow of 50, has three sons who are all major. Whatever might have happened in the earlier stages of the litigation, we are concerned only with what happened on the 6th and the 8th of February, 1960. There is no trace of any of the sons with the plaintiff in court either on the 6th or the 8th. The situation is that she was a widow who had come to pursue her litigation. She found that the original lawyer Shri Chowdhury was not only unable to attend but would not conduct her case and advised her to engage another lawyer. The other lawyer moved but failed to obtain an adjournment and would not appear again. Those initiated in the ways and means of a court of law might have run to a third lawyer. But seeing through human eyes, we cannot overtook the fact that this was a widow about whose education and mental attainments of the required standard we have got no light from the records; hence, when she had engaged senior lawyers, to expect more from her would be to expect the unreasonable.
7. On the contrary, it has been held in decisions such as that reported in : AIR1955Cal1 (FB) that a party who engages a competent lawyer cannot thereafter be held to be in default for the laches or negligence of that lawyer. In the instant case, however, it has been pointed out by the courts below that when Shri Ghose came to move the petition for adjournment, there was no Vakalatnama in his favour. It may be that he had not formally accepted the Vakalatnama at the moment. But it is an undisputed fact that he had already taken up the case of the petitioner and had moved the petition lor adjournment. His clerk, who gave evidence in the case under Order 9, Rule 9, did not say that Shri Ghose had not been engaged by the petitioner, and, that is why, he could not conduct her suit on the 8th February, nor was it so suggested to that clerk. Even if Shri Ghose had not been formally engaged on the record, we cannot forget what was pointed out in the case reported in : AIR1959Cal173 De-bendra v. Amalcndu, that when a lawyer on record refuses to act on behalf of a party in the ordinary course of events, he or she cannot be expected to engage another lawyer to conduct the case without a reasonable lap.se of time to secure the fees, or for the new lawyer to go through the brief and the like in order to get ready. But even though it be conceded that there was no laches on the part of Shri Ghose in not fuming up to conduct the case when the petition for adjournment was rejected simply because he had not been paid properly or he had not accepted the Vakalatnama formally, the plaintiff had a senior lawyer, viz., Shri Chowdhury, still on the record and, as I stated earlier, he never gave up his engagement up to the proceedings under Order 9, Rule 9 and his refusal to conduct this suit on the part of the petitioner at the last moment, which is an established fact, must be taken to be an act of professional negligence on his part. The learned District Judge went into the question as to how far the inability of a lawyer can be a valid excuse for a party for not prosecuting his or her case duly. Had the plaintiff really been cunning enough to pray for an adjournment on frivolous ground or to pursue a false case under Order 9, Rule 9 on the anticipation that the suit would be restored through the weakness of the Judge concerned, I would have entered into the question as to how far the inability of a lawyer could be a valid excuse either for obtaining adjournment or obtaining restoration of the dismissed suit. But in the facts and circumstances of the case my judicial conscience discourages me from branding the lady with the character which has been imputed to her by the courts below. It is not a case of a party pleading the negligence of a lawyer as an excuse for her own default but the case of a party who has suffered because of the refusal of her lawyer or lawyers to conduct her case. Sub-rule (1) of Rule 9 of Order 9 of the Code of Civil Procedure is as follows:
'Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on forhearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as It thinks fit, and shall appoint a day for proceeding with the suit.'
8. In a proceeding under Order 9, Rule 9, therefore, the sole point for determination by the Court is whether there was 'sufficient cause for the 'non-appearance' of the plaintiff when the suit was called on for hearing. I have already held that inability of the plaintiff-petitioner to conduct her suit because her lawyers did not get ready for the hearing after refusal of adjournment was a 'sufficient cause' for her non-appearance within the meaning of Orer 9, Rule 9(1). Observations in the judgments of the Courts below, however, suggest that they were of the opinion that because the plaintiff herself was physically present in Court on the date fixed for hearing, that should be regarded as her 'appearance', so that Order 9, Rule 9 should be of no avail to her. But it has been held in various decisions of this Court of which the decision in Sikandar v. Kushalchanclra : AIR1932Cal418 is that of a Division Bench, that after the petition for adjournment by a lawyer is rejected and he retires, the mere physical presence of the party in the precincts of the Court does not constitute an 'appearance' within the meaning of Order 9, Rules 6 and 8. This decision was followed in the case of Sardarmal v. Joharmal at p. 906 of the same report : AIR1932Cal425 . The purport of this decision, in short, is that the 'appearance' under Order 9, has a technical meaning and does not mean mere physical presence. When a party does not want to conduct his case in person but engages a lawyer, the appearance of such party must be an appearance through that lawyer when the suit in question is called on for hearing. After the rejection of the petition for adjournment it could not, therefore, be said that the petitioner had appeared in the suit and that, accordingly, her petition under Order 9, Rule 9, was not maintainable. On the other hand, I am constrained to hold that the Courts below have misdirected themselves upon the question before them under Order 9, Rule 9, and have taken a wrong approach.
9. Cases under Order 9, Rule 9, I do not forget, should not be treated lightly. But a Court sitting at the higher level would be failing in its duty if it cannot dispense proper justice in the marginal caries.
10. In my view, the dismissal of the application under Order 9, Rule 9 is vitiated with an error of law and should be set aside.
11. The Rule should be made absolute, but, of course, on payment of costs, since the defendants-opposite parties were not, in any way, in default on their part; and, in (view?) of the fact that the matter has come up to a third court, that amount should be a considerable one, which I assess at a lump sum of Rs. 100. The Rule shall be made absolute and the orders of the two courts below shall be set aside and the original suit restored to file for hearing on payment of this sum of Rs. 100 by the petitioner to the opposite parties in the court below within a period of three months from this date; failing which, the Rule will stand discharged.
12. Let the records go down as early aspossible.