1. This Rule is directed against an order of the Subordinate Judge of Cachar restoring a suit which was dismissed for default. The main ground upon which we are asked to interfere under Section 115, Civil P.C., is that the Court had no jurisdiction to restore the suit under Order 9, Rule 9, Civil P.C. What happened was that at the date of hearing which was fixed for 3rd November 1930 the plaintiff filed a petition for adjournment on the ground, as it appears from the subsequent proceedings, that he had engaged two pleaders from Sylhet to conduct his case, one of whom was dead and the other was unable to come to Cachar on that date. The petition was rejected on the ground that there was no sufficient reason for an adjournment. The plaintiff again applied for time on that date and that petition too was also rejected. Thereupon the plaintiff's pleader stated that he had no further instructions to proceed with the case. The learned Subordinate Judge then called the plaintiff and some of his witnesses to the Court-room and put some questions from which he discovered that the plaintiff had engaged some local pleaders also. He accordingly dismissed the plaintiff's suit for default. An application was made by the plaintiff for restoration of the suit and the learned Subordinate Judge restored it under Order 9, Rule 9, Civil P.C., and be also thought that he had power under Section 151 of the Code as well to give relief: to the plaintiff.
2. It is argued on behalf of the petitioner that in the circumstances of this case the plaintiff must be taken to be present in Court and therefore Order 9, B. 9 would not apply, There is some amount of divergence of opinion among different High Courts on this point. But so far as this High Court is concerned, and the same view has been adopted in the Madras and Patna High Courts, it is settled that where a counsel appears on behalf of a party and presents an application for adjournment which being refused he retires from the case, the party should be taken as not having appeared in the suit, Satish Chandra v. Apara Prosad  34 Cal. 403 (F.B.) Lalji Sahu v. Lachmi Narain  3 Pat. L.J. 355 T. Kaliyappa Mudaliar v. Kumaraswami Mudali A.I.R. 1926 Mad. 971. A different view has been taken in the Bombay High Court in Esmail Ebrahim v. Haji Jan Mahomed  33 Bom. 475 and Soonderlal v. Goorprasad  23 Bom. 414. This latter case was disapprovingly noticed in the referring order in Satish Chandra v. Apara Prosad  34 Cal. 403 (F.B.).
3. 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...
4. The word 'appear' in this rule apparently means appearing in the suit.' A party may be present in the princincts 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 ho 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 parte. That was the view taken by the learned Subordinate Judge when he dismissed the plaintiff's suit. The order he passed was 'that the suit be dismissed for default.' By 'default' I understand, he meant for the absence of the plaintiff, because no evidence was recorded in the case. The fact that the learned Subordinate Judge sent for the plaintiff and put him certain 'questions regarding the bona fides of his application would not be tantamount to his presence in the suit. The ground therefore on which this Rule was based fails. The next question that we were invited to consider is that in the circumstances of this case the order of the Court below is wrong on the merits. In the first place we are not entitled to go into that question under Section 115, Civil P.C., and in the second place this order, having restored the suit has given both parties an opportunity of having their differences settled in Court. We do not think that we should be justified in interfering with it.
5. This rule is therefore discharged. We make no order as to costs.
6. I agree.