Varadaraju vs C. Muthusamy

This revision is filed by respondent in A.S.No.185 of 1997, on the file of Sub Court, Namakkal.

Respondent herein filed O.S.256 of 1993, on the file of District Munsif''s Court at Rasipuram. Judgment of the trial Court reads thus:

Suit for permanent injunction. To pass a decree in favour of the plaintiff preventing the defendant from in any way interfering with the possession

and enjoyment of the plaintiff over the suit properties by means of permanent injunction ""and awarding costs of suit.

The following issues were framed:

Defendant and his Counsel are present and ready for the trial. Plaintiff present, but he is not ready for conducting trial. Hence the suit is dismissed

for non-prosecution of case.

It is against the above said judgment, plaintiff preferred A.S.No. 185 of 1997. The Appellate Court set aside the judgment of the trial Court and

remanded the matter to the trial Court for reconsideration. The same is challenged in this civil revision petition on the ground that the decision of the

Appellate Court is one without jurisdiction, when the appeal itself is not maintainable before it. When it has no jurisdiction, it cannot pass an order

of remand, which is an exercise of appellate jurisdiction.

When the revision came for admission, I ordered notice of motion and also stayed the proceedings before the trial Court pursuant to the remand

by Appellate Court.

First I will consider as to what is the effect of the judgment passed by the trial Court. Even though issues were framed, it is seen that no evidence

was taken, though the plaintiff was present in person. The trial Court has recorded the fact that though the plaintiff is present, he is not ready for

conducting the trial and, therefore, the suit is dismissed for non-prosecution.

As early as in Kaliappa Mudaliar v. Kumarasamu Mudali, AIR 1926 Mad. 971 a Division Bench of this Court considered this question, taking

into consideration the then provisions of Order 17, Rules 2 and 3, C.P.C. along with Order 9, C.P.C. In fact, the matter came before the Division

Bench on a reference made by a learned single Judge of this Court. Their Lordships held thus:

The real question for determination at issue is whether the appearance mentioned in 0.3, R.1 is merely a physical appearance, or whether it must

be an appearance with the intention of pleading in a suit. It is argued for respondents that mere physical appearance is sufficient, but if this is so it

would be on appearance if a party happened to be anywhere on the Court precinct with or without the knowledge of the Court. It is therefore

rather difficult to accept the argument that mere personal appearance is sufficient. It is clearly, we think, intended that the appearance must be, not

as a man but as a party and with the intention of acting as such party in that suit. If this is correct, then the mere fact that the party was present in

Court when his pleader reported no instructions would not amount to an appearance, for he is merely there as the person who was represented by

his pleader. The pleader acted on his behalf and when he ceased to do so, the party took no further part in the proceedings. The mere fact that he

was in Court cannot make it an appearance in the suit. .. .. .. ..

In Kuruvilla Chandy v. Neasan Bava Rowther, 1969 K.L.T. 402, which is also a case under Order 17, Rules 2 and 3, C.P.C. before

Amendment in 1996, V.R. Krishna Iyer, J., as he then was, has held thus:

... In fairness to the trial Court it must be mentioned that the judgment of the Court dismissing the suit does not purport to be on the merits either.

Naturally, it must be treated as one under Order 17 Rule 2 CPC. The question then arises whether there was any non-appearance of the plaintiff

so as to warrant a disposal under this provision. Non-appearance at the hearing of the suit is a sine qua non for the applicability of Order 17, Rule

But what is non-appearance? Courts have disagreed on this simple concept which has acquired a special meaning in the law reports over the

decades. Supposing an advocate appears on behalf of the party, moves for adjournment and on refusal thereof does not do anything more on

behalf of his client in the case, can it be said that such limited participation constitutes appearance of the party so as to deprive him of the benefit of

Order 9, Rule 9, CPC.

A pleader appears at the hearing on behalf of a plaintiff, and applies for an adjournment on the ground that he had no time to prepare himself with

the case, or on the ground that the papers being left with his senior he could not proceed with the case. The application is refused, and the pleader

being unable to go on with the case, the suit is dismissed. Can it be said under these circumstances that the plaintiff appeared by a pleader?...

The ratio of these decisions appears to be that when counsel who is unable to proceed with the case does not expressly withdraw from the case,

he must be held to have appeared and that accordingly an application under this rule to set aside the order of dismissal or under rule 13 to set aside

the exparte decree as the case may be is not maintainable. This somewhat strict view has not been adopted in later decisions. It was observed by

Mookherjee, J. in Satischandra v. Ahara Prasad, 1907 34 Cal. 403 that if the pleader is unable to answer all material questions relating to the suit,

to treat his mere physical presence as appearance would be to defeat ''the policy of the law and the course of justice. In Arunachala Goundan v.

Katha Goundan, 47 M.L.J. 614 Venkatasubba Rao, J. observed:

''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

instruction, is unable to answer all material questions relating to the suit, is not an appearance on behalf of the client''.

The trend of the later decisions has been not to treat mere physical presence of a pleader as appearance (23 Bom. 414) (Mulla C.P.C. Vol.I.

Page 803).

The learned author has explained the point earlier (Page 802) as follows:

Appearance by a pleader within the meaning of this order does not, lie appearance by a party in person, mean mere presence in Court; it means

appearance by a pleader ''duly instructed and able to answer all material questions relating to the suit'' ... Hence, a party cannot be said to ""appear

by a pleader, if the pleader appears at the hearing and states that though he has filed his vakalatnama, he has not received any instructions from his

client and that he his, therefore, unable to go on with the suit. Similarly a party cannot be said to ""appear"" by pleader, if the pleader has no

instructions other than to apply for an adjournment, and, on the adjournment being refused, withdraw from the suit, stating that he has no further

instructions to go on with the suit. Similarly,

There is a divergence of opinion among the High Courts as to whether mere physical presence of the pleader, unaccompanied by ability and

instructions to conduct the suit, is sufficient to constitute appearance. All that I need say here is that so far as the Kerala High Court is concerned,

there is a direct decision reported in Kunjannam v. Issac, 1961 KLT 653 where his Lordship Mr. Justice Govinda Menon took the view

expressed in para 4 of that ruling which runs as follows:

It is contended that 0.17, R.2, would apply only where there is a default of appearance on the pan of the plaintiff. That is so, but in B.M.

Venkatappa Navanum v. Padi Ramakrishnappa Chetty, AIR 1917 Mad. 106 following the decision in Gopalarow v. Maria Susay Pillai, 1907

(30) Mad. 274, it was held in circumstances substantially similar to the present case that there was no appearance of the plaintiff. In those cases

the Pleader for the plaintiff asked for adjournment of the suit and when it was refused stated to the court that he was not willing to proceed with the

case and it was held that it could not be said that there was appearance of the plaintiff in the suit. The plaintiff though physically present in Court did

not take part in the proceedings after the adjournment was refused and therefore could not be said to have been present there as plaintiff par-

taking in the proceedings. Mere physical presence in Court cannot be taken cognizance of and in effect that is non appearance at the hearing. If

that is so it would be a case coming under R.2 of 0.17 which provides that on a party failing to appear, the Court may proceed to dispose of the

suit, which the court has done by dismissing the suit. That is what has happened in this suit, which the court has done by dismissing the suit. That is

what has happened in this case also and following the view expressed above, the dismissal must be taken to be one under 0.9. R.8, for want of

appearance and an application could be filed under 0.9, R.9"". .. ..

In Hindusthan Steel Ltd. Vs. Prakash Chand Agarwal and Another, , in paragraph 7, a Division Bench of that High Court has held thus

(Relevant portion):

The word ''appearance'' has a well-recognised meaning and implies that the party is present at the trial either in person or through a pleader

properly authorised on his behalf, and in either case, the party or the person authorised on his behalf must be present for the purpose of conducting

the case. The mere physical presence of the party unless he is there for the purpose of conducting the case is not ""appearance"" as contemplated in

the rule nor does the presence of his pleader who had been instructed to appear on previous occasions constitute an appearance, unless he is

instructed to represent him on the occasion in question and attends for that purpose.

The question as to what constitutes appearance has been discussed fully by G.K. Misra, J. (as he then was) in Mulia Maharana Vs. Narayan Patra

and Another, , where His Lordships after reviewing the case law on the subject accepted the following dictum of a Bench of the Calcutta High

Court in Sikandar Ali and Another Vs. Kushal Chandra Sarma, as laying down the correct law on the subject. This is what their Lordships stated:

''The word ''appear'' in this rule (O.9, R.8) apparently means ''appearing in the suit''. A party may be present in the precincts of the Court or he

may be found present in the Court room but if he does not take part in the suit it cannot be said that he has appeared. This is what is meant by 0.9.

Rr.6 and 8. If a plaintiff comes to Court and files an application for adjournment and when the application is refused he retires from the suit, though

he may not have physically retired from the Court he is not to be considered any longer to be present in the suit and any order passed in such

circumstances must be taken to be an order passed ex parte.

We are in respectful agreement with this view.

The disposal in this case is not on merits, is clear from judgment of the trial Court (extracted above). Order 17, Rules 2 and 3, C.P.C., after

amendment in 1976 leans only in favour of dismissal for default. Order 17, Rule 2, C.P.C. provides that in case a party fails to appear, the Court

may proceed to dispose of the suit as directed in Order 9, C.P.C. Only in a case where a substantial portion of the evidence of a party has been

recorded, and if the party fails to appear to complete his evidence, the Court can treat that part of the evidence and proceed with the trial as if the

party is present, and dispose of the suit. This explanation has been added in 1976. The same will not apply to this case since no evidence has been

taken. Order 17, Rule 3, C.P.C. also may not have any application since that case was included in a trial not on the request of the plaintiff, but it

was included in the list. From the judgment, it is clear that there was no request by the plaintiff earlier, seeking an adjournment, enabling him to

produce the evidence, and he failed to do so. In that view, Order 17, Rule 3, C.P.C. also will have no application. In either way, the dismissal of

the suit can only be treated as dismissal for default.

An appeal is provided only against a decree. ''Decree'' is defined under Sec. 2(2) of CPC. Dismissal for default is not a decree as per the said

definition. Section 96, C.P.C. which provides for appeal must be from the decree, i.e., there must be an adjudication of rights.

An appeal being a creature of Statute, it cannot be entertained unless the Statute itself provides for the appeal even against the dismissal for

default. There no common law right for an appeal. Jurisdiction to entertain an appeal must be provided in the Statute itself.

In view of my finding that the dismissal of the suit was one for default, even though the plaintiff was physically present in Court, there is no

adjudication and consequently there is no decree in the case. There is a statutory nor in entertaining the appeal. The Appellate Court went wrong in

entertaining the appeal and remanding the matter to the trial Court. There was an inherent lack of jurisdiction in entertaining the appeal.

In fact, more or less on the same facts, I had occasion to consider the question regarding the maintainability of an appeal and the same is

reported in P. Ganesan Vs. UCO Bank and two others, . In that case also plaintiff-Bank Manager was present, but he was not ready to conduct

the case. So, the suit was dismissed for default. Against that, an appeal was taken. I held that the Appeal was not maintainable, and the remedy is

only to file an application under Or.9, Rule 9, C.P.C. In that case, I have elaborately considered the legal position.

In this case, plaintiff was physically present. But he was not in a position to proceed with the trial. It is not the physical presence of the person

that could be treated as ""appearance in Court"". The presence must be for the purpose of making a progress of the suit or proceeding, as the case

may be. If there is merely a physical presence, and the party is not in a position to proceed with the trial or to conduct the litigation, he could be

treated only as absent. In that case, I have referred to the decision of the Honourable Supreme Court in Prakash Chander Manchanda and

Another Vs. Janki Manchanda, , wherein Their Lordships have held thus:

It is clear that in cases where a party is absent the only course as mentioned in Order 17, Rule 3 (b) is to proceed under Rule 2.""( Italics supplied)

That means, it can only be a dismissal for default. In view of my finding that the Appeal is not maintainable before the Appellate Court, the

impugned order passed by it is also one without jurisdiction.

In the result, the civil revision petition is allowed, and the judgment of the lower Appellate Court is set aside There will be no order as to costs.

Connected C.M.P. is closed.