Arvind Benelli Ltd. vs State of J&K and Ors.

Arbitration application No. 121 of 1988 seeking the appointment of an arbitrator allegedly in terms of the arbitration agreement executed

between the parties was dismissed by this Court on 2641989 for nonprosecution and the interim stay granted was vacated. The then learned

counsel for the petitioner had intimated no instructions to prosecutes the case and it was noticed that the petitioners had not taken any steps for

production of the evidence in terms of the earlier court order dated 2521989. The petitioners new seeks restoration of the original petition to its

original number for the reasons detailed in the grounds of the petition. The petition is also accompanied by the affidavits of Shri A. K. Arora,

Advocate and Shri B. K. Sawhney.

In the objections filed on behalf of the respondents it is submitted that the present application for restoraration was not main tainable as the order

dated 26. 4. 1989 was passed under O. XVII r. 3 C.P.C. which was appealable and could not be termed to be an order in terms of O. XVIF r. 2

C.P.C. attracting the provisions of Order IX C.P.C. It is submitted that otherwise also no good ground is made out for restoration of the petition.

I have heard learned counsel for the parties and perused the record.

In order to attract the provisions of Order IX Rule 9 C.P.C. It has to be shown that the suit was dismissed for default under Order IX rule 8

and that there was sufficient cause for the non appearance of the plaintiff when the suit was called on for hearing. If sufficient cause is shown, the

order of dismissal can be set aside upon such terms ns to costs or otherwise as may be deemed proper. Under Order XVII rule 3 proper orders

are passed where a party defaults to produce his evidence or to cause the attendance of his witnesses or to perform any other act necessary to the

further progress of the suit for which the time was allowed. The default contemplated in rule 3 of Order XVII CPC is rot one of nonappearance of

one of the parties but of noncompliance with the various steps for the progress of the suit for which time was granted. In order that a case is

covered under rule 3 of Order XVII CPC it has to be shown that the time was granted to a party to take alt or any of the steps mentioned therein

for the progress of the suit, there must have been a default in taking such steps and the party concerned should have appeared . in the Court.

Appearance as contemplated under this rule implies that the party is present at the trial either in person or through a pleader properly authorised on

his behalf, However, mere physical presence of the party, unless he was there for the purpose of conducting the case, is not sufficient. It is,

however, acknowledged position of aw that mere physical presence of the counsel in the Court would not in all circumstances, amount, to an

appearance of the party himself. If the counsel is not duly instructed to proceed with the case, his physical appearance would not amount to the

appearance of the party. Whether the counsel is duly instructed or not, is a question of fact which may either be determined on the basis of the

evidence on the record or may be gathered from the conduct of the counsel at the time of hearing of the suit. If a counsel physically present in the

court, neither acts nor pleads on his client's behalf and remains a silent spectator of what is done by the court without in any way participating in its

proceedings, it may by reasonable to infer that he was not duly instructed by his client. In Balabux V. Sita Ram AIR 1961 Rajasthan 58,' it was

held :

An examination of the aforesaid decision would show there is a preponderance of authority for the view that the mere physical presence of the

counsel in the court would not in all circumstances amount to an appearance of the party himself. In view of the provisions of Order 3 Rule 1 and

Order 8 Rule 4, appearance of the counsel is tantamount to an appearance of the party; but if the counsel whether he be appearing for the

defendant or the plaintiff is not duly instructed to proceed with the case his physical appearance alone would not amount to an appearance of the

party.

Whether the counsel is duly instructed or not is a question of fact which may either be determined on the basis of the evidence on record or may be

inferred from the conduct of the counsel at the time of hearing of the suit. Where a counsel though physically present in the court neither acts nor

pleads on behalf of his client and remains a silent spectator of what is done by the court without in any way participating in its proceedings, it would

be quite reasonable to infer in such circumstances that he was not duly instructed by his client. It is important to bear in mind that while drawing

such an inference due regard should be given to the purpose for which the appearance was required on that particular date of hearing. As

observed by Mukerjee, J. in Satishchandra Mukerjee's case, ILR 34 Cal 403(FB), that the term 'appearance' is nowhere defined in the code and

as pointed out by Benson, J. in Seelay v. Evans, (1838) 19 Wendell (N.Y.) 459 the word must always be understood in reference to the particular

subject matter to which it relates and the purpose or end to be ansered by the appearance has an important bearing in determining what is sufficient

to constitute appearance in a particular case.

In that case even though the counsel for the plaintiff was physically present on the date fixed, yet, he did not take part at all in the proceedings

when the case was fixed for evidence. The counsel had made only a request for adjournment but the suit was dismissed. In the circumstances of

the case it was held that the order of dismissal of the suit was an order under Order XVII rule 2 C.P.C. which attracted the provisions of Order IX

rule 8 C.P.C. and the Court had the jurisdiction to restore the suit. In Sachitan and Dass V. Mt. Budhiariwati AIR 1958 Patna 56, where the

counsel for the plaintiff had stated before the court that he had no further instructions in the case, it was held that the case was covered under

Order IX C.P.C. and the mere appearance of the counsel could not be held to be the appearance of the party.

In the instant case issues were framed by the Court on 2521987 and the case was adjourned for evidence of the petitioner on 2641989 when

the then learned counsel for the petitioner reported no instructions resulting in the dismissal of the suit for nonprosecution. It is true that the

petitioner had not taken any step for production of the evidence as per direction of the Court dated 2521989 and the orders in terms of Order

XVJI rule 3 C.P.C. could have been passed. Learned counsel for the petitioner, in fact did not take any part in the proceedings and only reported

'no instructions' in the case. Mere physical appearance of the learned counsel cannot be held to be appearance of the party' within the meaning of

order XVII rule 3 C.P.C. It appears that order of this court dated 2641989 is a composite order under Order IX rule 8 read with Order XVII

rule 3 C.P.C. As no effective proceedings have taken place, a liberal construction has to be placed on the order which is held to be an order in

terms of Order IX rule 8 C.PC. attracting the provisions of Order IX rule 9 authorising the petitioner to file an application for restoration of the

original application dismissed for default of appearance in the absence of the effective participation by the counsel for the petitioner.

The present application for restoration was filed within one month which is supported by the affidavits as referred to hereinabove. Respondent

No 2 has alleged that the advocate of the petitioner had not appeared as perhaps he had not been paid his fee which supports the contention of the

petitioner that the appearance of their counsel, in fact, was not an effective appearance in the case. No effective steps have been taken in the case

and the restoration of the petition would not in any way prejudices the rights of the respondents. The respondents can, however, be compensated

by costs.

Under the circumstances the petition is allowed and the Arbitration Application No. 121 of 1988 dismissed for default of appearance and

nonprosecution on 2641989, along with C.M.P. No. 188/89 is restored to its original number, subject to payment of Rs. 2,000 (Rupees two

thousand) as costs to be paid within one month and shared equally by both the learned counsel for the respondents. The interim order passed in

C.M.P. No. 188/89 on 23388 is revived. This petition along with CMP No. 304 of 1990 is disposed with a direction to the Deputy Registrar to

list Arb. Application along with CMP at an early date.