(1.) This is an application for revision directed against an order of the learned Subordinate Judge of Benares, cancelling a previous order of his own by which he had dismissed the plaintiff's suit for his non-appearance in person. The applicant before us is one of the defendants in a mortgage suit brought by the mortgagee for sale of the mortgaged property on foot of a mortgage executed by defendants first set. Defendants second set are subsequent transferees. Defendants third set are certain persons who claim interest in the mortgaged property alleged by them to be waqf. The suit was fixed for some miscellaneous proceedings to be taken on 22 November, 1932. The Court directed on that date that the parties should admit and deny each other's documents on 6 December 1932. The order does not expressly state that the admission and denial of documents should be made by the parties themselves. On 6 December 1932, the Court recorded a definite order that the parties should attend in person on 22 December, 1932, to admit and deny each other's document The plaintiff and the defendants first set did not appear on 22 December, 1932, though the advocate of the former was in attendance. The Court dismissed the suit for want of prosecution. There is no doubt that the want of prosecution on which the order of dismissal is based was the absence of the plaintiff for the purpose of admitting and denying the documents of the opposite party. Subsequently the plaintiff made an application for restoration of the suit, alleging that he did not appear because a compromise had been arrived at between him and the mortgagor. His application purported to be one under Order 9, Rule 9, C.P.C. The present applicant (one of the defendants third set) objected to the suit being restored. One of the grounds on which he resisted the application for restoration was that the order of 22 December, 1932, was not one under Order 9, Rule 8, but under Order 10, Rule 4, C.P.C., and therefore the Court had no jurisdiction to restore it. The learned Subordinate Judge recorded a definite finding that he meant to dismiss the suit under Order 9, Rule 8, C.P.C., and held that he had power to restore it under Order 9, Rule 9. Accordingly he passed an order directing that the suit be restored under its original number on condition that the plaintiff paid a sum of Rs. 445, as costs to the defendants. Dissatisfied with the order of the learned Subordinate Judge restoring the suit the present applicant has moved this Court in revision.
(2.) His learned advocate now argues that the order of the Court dismissing the suit for want of prosecution should be deemed to be one under Order 9, Rule 12, C.P.C., and therefore the Court had no power to restore the suit except on sufficient cause being shown to the satisfaction of that Court. It is pointed out that the order of the Court restoring the suit does not contain any finding on the question whether there was sufficient cause for the nonappearance of the plaintiff on 22 December, 1932. It is true that the learned Subordinate Judge has not discussed the question as to whether the plaintiff was prevented by any sufficient cause from appearing on 22 December, 1932, but we are inclined to think that there is no mention of this aspect of the case in the order of the learned Subordinate Judge because it was not raised by the defendants. It seems to have been tacitly conceded that if the Court had power to restore the suit, circumstances existed which justified its restoration. The only ground on which the plaintiff's application for restoration seems to have been contested was that the Court had no jurisdiction to proceed under any of the rules of Order 9, C.P.C., the suit having been dismissed under Order 10, Rule 4. The learned Subordinate Judge has written an elaborate order discussing whether his order of 22nd December 1932, should be considered to be otherwise than an order under Order 9, Rule 8, C.P.C. He arrived at the conclusion that it was an order under that rule and as no other point was argued he restored the suit without recording a funding on the question whether there was sufficient cause for plaintiff's non-appearance. Even assuming that the defendants raised this question in the Court below, and by an oversight the learned Subordinate Judge did not apply his mind to it, we are of the opinion that, in the circumstances of the case, it was not necessary for the learned Subordinate Judge to investigate that question.
(3.) The nature of the order of 22 December, 1932, has been misapprehended by the Subordinate Judge and both the parties. To ascertain its real character we must consider the previous orders of 22 November, 1932, and 6 December 1932. For some reason which is not apparent on the record, the Court considered that it would be more convenient if the parties appeared in person to admit and deny each other's documents. The pleaders of the parties were not asked to admit or deny the documents. No occasion, therefore, arose for their (the pleaders ) refusal or expression of inability to do so. The Court assumed that it had power to direct, without assigning any reason, the personal attendance of the parties In our opinion it was wrong in making that assumption Ordinarily a party's pleader or recognized agent can do everything which a party himself is required to do. Order 10, Rule 4(1) C.P.C., provides: Where the pleader of any party who appears by a pleader or any such person accompanying a pleader as is referred to in Rule 2, refuses or is unable to answer any material question relating to the suit which the Court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the Court may postpone the hearing of the suit to a future day and direct that such party shall appear in person on such day.