CHELLAM AYYAR Vs. GSUBRAMANIA AYYAR

JUDGEMENT

(1.) I think that the order of the learned District Munsif restoring the suit may be sustained but upon somewhat different grounds. The lower Court has experienced difficulty in reconciling the decisions of the Full Bench in Pichamma V/s. Sreeramulu [1918] 41 Mad. 286, and of Odgers, J., in Viswanatha Asari V/s. Sami Asari A.I.R. 1924 Mad. 43, but they are in truth not in conflict. The principle with which each is compatible is that in ordinary circumstances if a party is represented by a pleader, that is an appearance for the purpose of Order 9 and Order 17, Civil P. C. The party was, it is true, represented by a pleader in the present case. But there was a special circumstance which will be apparent from the B. Diary and the judgment in the suit. It appears that on 6 and 7 December 1929 two witnesses for the plaintiff were examined and the plaintiff himself was directed to appear in person on the 10th. On that day however he was absent though his vakil was present, and a further opportunity was given to comply with the Court's order. On the 13th to which the suit was thus adjourned, the plaintiff was again absent, and the Court accordingly dismissed the suit for his default. The reason for the dismissal is stated in the judgment to be that the plaintiff who was directed to appear was absent; and the Court deeming itself competent to dismiss the suit for default in such circumstances so dismissed it.

(2.) The principle adopted in the Full Bench case is to treat Rule 3, Order 17, as applying only to cases where the parties are present and have not satisfied the Court as to the existence of any reason for their not having done what they were directed to do. Accordingly the first thing to inquire in these cases, as has since very frequently been explained, is to ascertain whether Order 17, Rule 2, applies to the circumstances of the case. In other words, we have to ascertain whether on the 13th, the date on which the suit was dismissed, the plaintiff failed to appear. Order 9, Rule 12 gives us a reply to that question by laying down that where a party who has been ordered to appear in person does not so appear, he shall be "subject to all the provisions of the foregoing rules (Order 9) applicable to plaintiffs and defendants, respectively, who do not appear."

(3.) It is idle in the circumstances for the argument to be raised that the plaintiff did in fact appear through his vakil. The presence of a vakil, where a plaintiff has been directed to appear in person, does not amount to an appearance of the party within the requirements of the Civil Procedure Code. Accordingly the lower Court was justified in holding that it could act Under Order 17, Rule 2, Civil P. C., and could restore the suit. On the merits it is clear that there was evidence that the plaintiff was incapacitated from appearing by indisposition and the Court was justified on this ground also in making the order.