N. Chatterjea, J.
1. The plaintiff-appellant sued the defendant-respondent for arrears of rent in respect of a mokurari for the years 1311 to 1314. He brought a previous suit for rents for the portion of the period covered by the present suit. That suit was dismissed on the 30th October 1906.
2. The defence in the present case was that the previous suit having been dismissed, the present suit could not be maintained.
3. The Court of first instance, holding that the previous suit was dismissed under Section 158, Civil Procedure Code, gave a decree only for the period subsequent to that covered by the previous suit and that decree has been confirmed on appeal by the learned District Judge.
4. The plaintiff has appealed to this Court and it is contended on his behalf that the previous suit was only dismissed for default and as such the dismissal could not stand in the way of the present suit.
5. It appears that the hearing of the previous suit was fixed for the 12th September 1906. On that date an application was made on behalf of the plaintiff for adjournment on the ground that his witnesses were not present. The suit was accordingly adjourned to the 30th October 1906. On that date an application was made on behalf of the plaintiff praying for seven days' time for producing his witnesses off the ground that they were ill. Another petition was put in on that date praying for fifteen days time to enable the plaintiff to obtain copies of documents from Courts for proving the monthly instalments. Both the petitions were rejected. Then the following order was passed:
The plaintiff's pleader states that he is not in a position to proceed with the case for want of evidence. The defendant is absent. Accordingly, it is ordered that the suit be dismissed for the plaintiff's default or rather for want of prosecution.' No decree was drawn up on that order. The defendant did not appear in that suit at all.
The question is whether the suit was disposed of under Section 157 or decided under Section 158 of the Civil Procedure Code.
In the previous suit the applications for adjournment made on the 30th October having been rejected the pleader informed the Court that he was not in a position to proceed with the suit for want of evidence, and it is contended on behalf of the appellant that there was no appearance within the meaning of the sections and that the order passed by the Court being one for dismissal for default must be taken to have been passed under Section 157 and the cases of Mariannissa v. Ram Kalpa Gorain 34 C. 2 35 : 5 C.L.J. 260 and Satish Chandra Mukerjee v. Apara Prasad Mukerjee 5 C.L.J. 247 : 11 C.W.N. 329 : 34 C. 403 : 2 M.L.T. 123 (F.B.) are relied upon.
In the first case the pleader for the plaintiff applied to the Court for adjournment and that having been refused he informed the Court that he had no instructions to proceed with the suit and withdrew from it. The suit having been dismissed for non-prosecution an application was made under Section 103, Civil Procedure Code, to set aside the dismissal. The learned Judges in that case, after referring to what the pleader had stated to the Court and to his withdrawal from the suit, observed as follows: 'The result, therefore, was that from that moment there was no appearance on behalf of the plaintiff and consequently Section 102 read with Section 157 became applicable. The order of the Court makes it quite clear that the suit was dismissed for non-prosecution and the order was in substance, as it was in form, an order under Section 102. It was not a dismissal for want of evidence which might be regarded as a decision on the merits but was a dismissal for want of prosecution. The plaintiff was consequently entitled to apply under Section 103.
6. In the case of Satish Chandra Mukerjee v. Apara Prasad Mukerjee 5 C.L.J. 247 : 11 C.W.N. 329 : 34 C. 403 : 2 M.L.T. 123 (F.B.) it was held that an application by a pleader who is instructed only to apply for an adjournment which is refused is not an appearance within the meaning of the Civil Procedure Code, and that a dismissal of an appeal under such circumstances is one for default under Section 556, Civil Procedure Code.
7. It is contended on behalf of the respondent that in the previous suit in the present case it does not appear that the pleader was instructed merely to apply for adjournment as in the Full Bench case cited above and he did not inform the Court that he had no instructions to proceed with the suit nor withdrew from it as in the case in Mariannissa v. Ram Kalpa, Gorain 34 C. 2 35 : 5 C.L.J. 260. But as no evidence was forthcoming the pleader could not proceed with the suit and it is difficult to see what instructions the pleader could have had in the case except to apply for adjournment. His statement to the Court that he was not in a position to proceed with the suit for want of evidence practically amounts to saying that he had no instructions and to his withdrawal from the suit, and though he might have been physically present in Court he had nothing further to do with the suit. I think the mere physical presence of a pleader not instructed for the purpose of proceeding with the suit is not an appearance in the sense of Chapter VII of the Code. In the case of Doma Ram v. Raghu Nath 10 C.W.K. 40 where the suit was dismissed for want of proof against a defendant who was absent it was observed by the learned Judges, Mitra and Caspersz, JJ., that for all practical purposes both parties were absent though the plaintiff's pleader was bodily present and it was held that the order of dismissal did not operate as res judicata but fell under Section 98 of the Civil Procedure Code.
8. Then, it is urged on behalf of the respondent that the order of the Court must be taken along with what the pleader stated, and the two taken together show that there was a dismissal for want of evidence. But it appears that although the pleader stated that he could not proceed with the suit for want of evidence the Court did not decide the suit on that ground but dismissed it for default or for non-prosecution.
9. It is next urged that the plaintiff has taken time to produce evidence and failed to produce evidence and the Court must, therefore, be taken to have dismissed the suit under Section 158. The Court might have proceeded under that section to decide the suit notwithstanding plaintiff's default. There was no evidence adduced in the case, so the Court could not decide the suit on the evidence but it could have dismissed the suit for want of evidence which, as pointed out in the case of Mariannissa v. Ravi Kalpa Gorain 34 C. 2 35 : 5 C.L.J. 260, might be regarded as a dismissal on the merits, but the Court did not do so and dismissed the suit for default or for non-prosecution as was done in the case cited above. The Court in the present case cannot go behind the order passed in the previous suit and determine what order the Court ought to have or might have made under the circumstances of that case but the Court has only to construe the order passed in that case.
10. The case of Comalammal v. Rungasawmy 4 M.H.C.R. 56 in which it was held under somewhat similar circumstances that the order was under Section 198 of Act VIII of 1859, corresponding to Section 158 of Act XIV of 1882, was considered and was not followed in the case of Mariannissa v. Ram Kalpa Gorain 34 C. 2 35 : 5 C.L.J. 260 in which it was pointed out that the scope of Section 157 is quite distinct from that of Section 158.
11. In the case of Kashee Pershad v. Debi Das 7 A.H.C.R. 77 both the parties were represented by their pleaders and the suit was dismissed for want of evidence. I accordingly bold that the previous suit was dismissed for default or for non-prosecution and the case falls under Section 98, Civil Procedure Code, and the plaintiff is entitled to bring a fresh suit and that this appeal should be allowed.
12. The decrees of the Courts below are therefore, varied and the claim for rent for the entire period in suit together with cesses and interest at the rate awarded by the Courts below be decreed with proportionate costs.