1. On a date fixed for the hearing of a suit which the petitioner had instituted, the petitioner, who was present with his witnesses, intimated to the Court that a pleader whom he had engaged for conducting the suit on his behalf was actually engaged in another Court and prayed for a short adjournment. The Munsif passed over the case and asked the petitioner to engage another pleader. He took the case up again about an hour after, as appears on the order sheet, but the pleader had not yet arrived. The petitioner had in the meantime sent his son to call his pleader who was in another Court. It does not appear what the distance between the two Courts was. The Munsif refused to wait any further, and called upon the petitioner to proceed with the case. The petitioner informed the Court that he had sent his son to call the pleader whom he had already engaged, and said that it was not possible for him to engage another pleader and that he was unable to examine himself or his witnesses. The Munsif thereupon dismissed the suit with costs. Shortly after, on the same day, the petitioner's pleader appeared and filed a petition for the restoration of the suit. Reliefs were asked for under O.9, R.9, Civil P.C., and Section 151, Civil P.C. The Munsif issued notice to the other side, and on a slate fixed for the purpose, examined the petitioner and dismissed the application holding that in giving certain answers in the course of his deposition he had perjured himself. These answers related to the question whether the petitioner had not been called upon by the Court to go on with the case, the petitioner's answers suggesting that he had not been specifically asked to do so and trying to make cut that ho did not fully understand the proceedings.
2. The petitioner preferred an appeal from the order refusing to restore the suit. The Subordinate Judge observed in his order:
I may however remark that the lower Court's order operated with great hardship against the plaintiff who was victimized for circumstances beyond his control. I have gone through the plaintiff's deposition but cannot agree with the learned lower Court that he was guilty of deliberate perjury. I have carefully gone through the lower Court's record and find that the plaintiff's allegations were well-founded.
3. Having examined in detail all the facts and circumstances of the case and referred to the conduct of the respective parties in the course of this litigation the Subordinate Judge eventually observed:
Under such circumstances the learned lower Court should have either waited for some time or adjourned the suit to the next day after awarding some adjournment costs to the opposite party. The order of dismissal, in my opinion, was unjustified and unduly harsh.
4. I have perused into the papers of the case and I have no hesitation in agreeing with these conclusions of the Subordinate Judge.
5. The Subordinate Judge however felt compelled to dismiss the appeal as in his opinion the dismissal of the suit was not under Order 9, Civil P.C., and so no application under Rule 9 of that order lay and consequently no appeal from the order was competent. He also held, and rightly enough, that so far as the application was under Section 151, Civil P.C., the Munsif's order of rejection was final, not being open to revision, at least by the Subordinate Judge.
6. The Subordinate Judge proceeded upon the view which has obtained in Bombay that a plaintiff will be deemed to have 'appeared' on the date fixed for the hearing of the suit, if he appears in person, and the mere presence of a party in Court at the hearing is sufficient to constitute appearance within the meaning of O.9, and it does not matter for what purpose he appears or what action he takes on his appearance, and that in such cases the plaintiff cannot avail himself of the provisions of R.9 of that order: Soondar Lal v. Goor Prasad  23 Bom. 414 and Esmail v. Jan Mahmood  33 Bom. 475. A decision of the Madras High Court Gopala Rao v. Mariya Susaya Pillai  30 Mad. 274 appears to have been shown to him but he declined to follow it saying that:
the modified view laid down in that case was not approved in any subsequent ruling.
7. On the question involved there is a conflict of view amongst the different Courts in this country. The case of Soon-der Lal v. Goor Prosad  23 Bom. 414 was disapprovingly noticed in the referring order in Satis Chandra v. Apara Prosad Mukerji  34 Cal. 403. In Madras 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 ease, the party should be taken as not having appeared in the suit: Gopala Rao v. Maria Susaya Pillai  30 Mad. 274 and T. Kaliyappa Mudaliar v. Kumaraswami Mudali A.I.R. 1926 Mad. 971. So also in Patna: see Lalji Sahu v. Luchmi Narain  3 Pat. L.J. 355 Sheikh Mahomed v. Chulhai Mahto  4 Pat. L.J. 712 and Damodar Das v. Raj Kumar A.I.R. 1922 Pat. 485. in a recent case of this Court Sikandar Ali v. Khushal Chandra : AIR1932Cal418 a Division Bench of this Court has held thus:
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...The word 'appear' in this rule apparently means appearing in the suit. A party may be present in the precincts 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 he has 'appeared.' This is what is meant by O.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 ho 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 ease. 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.
8. I am bound by and agree with the ruling just cited.
9. I hold therefore that the dismissal of the suit rightly formed the subject-matter of the application under Order 9, Rule 9, Civil P.C., and that the learned Subordinate Judge was fully competent to deal with it in the exercise of his appellate powers.
10. The rule is made absolute. The order of the Subordinate Judge and of the Munsif being reversed, the decree passed by the latter is set aside and the suit itself is restored.
11. There will be no order for costs.