Arunachela Goundan vs Katha Goundan and Others

Venkatasubba Rao, J.—There were two suits before the District Munsif, the one he dismissed for default on account of the nonappearance

of the plaintiff, and in the other he passed an ex parte decree on account of the defendant not having appeared. The plaintiff in the first suit; and the

defendant; in the second suit happen to be the same person. Applications were made to the District Munsif to set aside the order of dismissal for

default in the first suit and to set aside the ex parte decree in the second suit. The District Munsif refused to allow these applications, but on appeal

the District Judge made orders favourable to the applicant. The propriety of these orders is challenged in the revision petition before me.

A vakil appeared for the party in default and stated he had no instructions. It is argued that notwithstanding this, the pleader must be held co

have appeared on his client''s behalf and, therefore, the provisions of Order 9 do not apply. I am utterly unable to follow this argument. Order 3,

Rule 1, so far as it is material for the present purpose, runs thus:--""Any appearance in any Court required by law to be made by a party may be

made by a pleader duly appointed to act on his behalf."" Order 5, Rule 1, Sub-clause (2) provides:--""A defendant to whom a summons has been

issued under Sub-rule (1) may appear (a) in person, or (b) by a pleader duly instructed and able to answer fill material questions relating to the

suit, or (c) by a pleader accompanied by some person able to answer all such questions."" This provision no doubt refers in terms to a defendant,

but in principle there seems to be no distinction for this purpose between a defendant and a plaintiff, and I am quite clear that the same Rule is to

be applied in regard to both. When a pleader appears and says he has no instructions, I take it that he intends to inform the Court that he has no

instructions to conduct the case either wholly or partially; in other words, he tells the Court that, though he has filed an appearance, he does not

propose to appear for his client. It seems to me to be a contradiction in terms to bold that a person who says he does not appear, does, in fact,

appear. It has been argued that it is necessary for a pleader to say in such circumstances that he severs his connection with the case, or that he

withdraws his vakalat. I do not think any set form of words is necessary to convey to the Court the information that he has ceased to appear and

that he, in fact, does not appear for his client. There is no magic in the words ""I have ceased my connection with the case."" In my opinion the mere

attendance of a pleader who, for want of instructions, is unable ""to answer all material questions relating to the suit"" is not an appearance on behalf

of his client. Another case may arise where the pleader appears and says that be applies for an adjournment and on the adjournment being refused,

informs the Court that he has no instructions. Here again, I am perfectly clear that there is no appearance on behalf of the party. Then a third

contingency may arise. The pleader may be duly instructed and be able to answer all material questions, but still he may tell the Court, ""I have no

instructions."" This conduct may render him liable at the instance of his client, but the question that is material for the present purpose is, was there

or was there not an appearance? Supposing that a pleader who has been retained is actually engaged in another Court and fails to appear, can it

be said that there is an appearance on behalf of his client? Failure to appear and refusal to appear, do, I think, stand on the same footing. In neither

case can there be said to be an appearance. The matter seems to be simple in the extreme and but for the large body of conflicting decisions on the

point, I should have had no difficulty in deciding the case. There is abundant authority in favour of the proposition, as I have stated it. Gopala Row

v. Maria Susaya Pillai (1906) 30 Mad. 274, Soondarlal v. Goorprasad (1898) 23 Bom. 414 and Satish Chandra Mukerjee v. Ahara Prasad

Mukerjee (1907) 34 Cal. 403; and I am not prepared to follow the decisions which take a different view.

The Civil Revision Petitions, therefore, fail and are dismissed; No. 212 with costs. In No. 213, the petitioner will pay the counter-petitioner only

the printing charges, no vakils'' fee is allowed.