K SEETHAMMA Vs. K KAMESWAR RAO

JUDGEMENT

(1.) THIS is an application in revision filed by the plaintiff against the order D/- 1812-1963 passed on appeal confirming the order D/ 30-4-1962 passed bv the Trial court whereby it dismissed the suit under Order 17, Rule 2 of the Code of Civil procedue. It appears that the suit was pending for some time and finally on 8-81961 it was posted for hearing to 31-8-1961. On that date the plaintiff originally did not turn up nor there was any petition filed on her behalf for adjournment. In fact not even hazira was filed by the learned lawyer appearing for her. On the contrary, the learned lawyer informed the Court that be had no instruction. Subsequently the plaintiff after some time came to Court. But though she was present she did not even then take any step when the case was taken up for hearing with the result that it was ultimately dismissed for default. Thereafter on 30-9-1961 there was an application filed under Order 9, Rule 9 of the Code of Civil procedure for restoration of the suit. This was disposed of by the Trial Court by the order dated 30-4-1962 whereby it held that "there was no sufficient ground for setting aside the dismissal order". Accordingly it dismissed the application. Against that order there was an appeal taken by the plaintiff. In appeal the judgment of the Trial Court was confirmed by the order dated 18-12-1963. 11 is against this order that the plaintiff has now filed the present petition under Section 115 of the code of Civil Procedure.

(2.) IT appears that the dominant fact which has influenced the two courts below in dismissing the petition filed by the petitioner under Order 9, Rule 9. C. P. C. is the fact that she was present at the time when the case was taken up for hearing, but despite that she neither filed any petition for adjournment nor brought a lawyer to take necessary steps in the case. The reason given by the petitioner for coming late to the Court on 31-8-1961 was that due to madness of her son she could not catch Berhampur Bus in time with the result that she arrived there late and as by that time her lawyer had already put in a memo informing the Court that he had no instruction in the case, she was taken by surprise and was not in a position to take any other step in the matter. Therefore by implication it is not denied that she was present in Court at the time when the case was taken up for hearing. But the question that arises for consideration is whether mere physical presence of a litigant is presented for the purpose of prosecuting the suit wherein he is interested. This point has been elaborately dealt with by some of the decisions of different High Courts in India like those in Mariannissa v. Ramkalpa Gorain (1907)I. L. R. 34 Cal. 235, Satish Chandra v. Ahara Prasad (1907) I. L. R. 34 Cal 403 (FB), lalji Sahu v. Lachmi Narain, A. I. R. 1918 Pat 351, Kaliappa v. Kumarswami, A. I. R. 1926 Mad 971 and Gopala Row v. Maria Susaya Pillai (1907) I. L. R 30 Mad 274. In all these decisions it has been uniformly held that the word "appearance" as used in Order 17. Rule 2. C. P. C. , does not mean physical appearance or physical presence of the party concerned, but appearance for the purpose of prosecuting the case or suit pending in the Court. In other words, the appearance is for the purpose of taking part in the proceeding and in that it includes her preparedness to cite evidence and to produce documents or to take any other step for the disposal of the case as may foe considered necessary. Therefore, if a party to a suit for some reason or other is precluded from being ready to take part in the prosecution of the suit, but somehow manages to come to court with a view that the case should be got adjourned for some other day, his appearance in such a circumstance will not amount to an appearance as contemplated by Order 17. Rule 2 C. P. C. I may here refer to the view of the Full Bench of the Calcutta High Court in (l907)ILR 34 Cal 403. In that case it was unanimously held by all the Judges who constituted the Bench that