1. The petitioner in this Rule was the plaintiff in a suit in which a Commissioner was appointed to make a local enquiry. After the Commissioner had submitted a report he was directed to make a further enquiry and submit a fresh report, and the petitioner was directed on the 3rd July 1924 to deposit Rs. 60 within three days of that date as Commissioner's fee, etc., and the hearing of the suit was adjourned to the 21st July. On the 21st July it appears that this sum had not been paid and the plaintiff's explanation was not accepted by the Court and his application for time was rejected. Thereon the plaintiff's Pleader stated that he had no further instruction, and the suit was dismissed for plaintiff's default. The plaintiff then applied to the Trying Court under Rule 9 of Order IX, C.P.C. for revival of the suit. That application was rejected. On appeal to the District Judge the appeal was dismissed on the ground that the order passed by the Subordinate Judge was not in a proceeding contemplated by Order IX of the Code and consequently no appeal lay.
2. We are unable to agree with the decision of the learned District Judge. It is now settled law that when after an application for adjournment is rejected the party's Pleader states that he has no further instruction that is equivalent to the absence of the party from the hearing. This follows from the decision of the Full Bench in the case of Satish Chandra. Mukerjee v. Ahara Prasad Mukerjee 34 C. 403 : 5 C.L.J. 217 : 2.M.L.T. 123 : 11 C.W.N. 329. Consequently when the Subordinate Judge on the 21st July 1924 dismissed the plaintiff's suit for default this must be held to have been a dismissal under Rule 8 of Order IX which would be made applicable by Rule 2 of Order XVII. Consequently the petitioner was entitled to make an application under Order IX, Rule 9 and an appeal lay to the District Judge against the order refusing that application.
3. We accordingly make this Rule absolute. We set aside the order of the District Judge of Midnapore, dated 10th January 1925 dismissing the petitioner's appeal and we direct that the appeal be heard on the merits.
4. The costs of this Rule will be costs in the appeal. We assess the hearing-fee at two gold mohurs.