K BALIREDDI Vs. KLAKSHMAMMA

JUDGEMENT

(1.) This is an appeal from an order of the District Judge of Anantapur dismissing in limine an application purporting to be under Order 9, Rule 9, Civil Procedure Code, praying that an ex parte dismissal of a suit be set aside.

(2.) The admitted facts of the case are that the plaintiff engaged three vakils to appear for him and that on the date of hearing, all of them were absent. One Mr, Krishna Sastri, however, appeared on behalf of one of the three, Mr. Venkata Reddi, and requested an adjournment or that the case might be passed over for some time. The case was passed over and when called again, Mr. Krishna Sastri reported no instructions on behalf of Mr. Venkata Reddi. The suit was thereupon dismissed. The question is whether it was dismissed under Order 17, Rule 2 or under Order 17, Rule 3.

(3.) It has been held repeatedly that when a vakil comes to Court merely to ask for an adjournment and upon that being refused reports no instructions, the pleader fails to appear; and it has also been held that unless the plaintiff himself takes some further part in the proceedings thereafter, he himself also fails to appear and that therefore any order of dismissal of the suit would be under Order 17, Rule 2. In Gopal Row V/s. Maria Susaya Pillai (1906)17 M.L.J. 225 : I.L.R. 30 Mad. 1274 the learned Chief Justice said: It seems to me the plaintiff failed to appear as from the time when his pleader declined to proceed with the case. On behalf of the appellant, it was suggested that the plaintiff was present in Court when his pleader declined to proceed. Even if it were so, this, in my view, makes no difference. The plaintiff was not appearing in person but by his pleader, and if it can be said that the pleader failed to appear, as from the time when he declined to proceed, it follows that the party also failed to appear.