LACHHMI NARAIN Vs. SHANKER LAL

JUDGEMENT

(1.) These are four applications to this Court, two first appeals and two civil revisions, and in all of these applications the point raised is in regard to an order of the Court below refusing to restore a suit. The facts are as follows in regard to the various suits which were tried together. 4 April 1932 was fixed for issues and 20 and 21 May were fixed for final disposal. On 8 April 1932 Lachhmi Narain made an application on account of his son's wedding, asking that the date should be changed from 20 May. The opposite party raised no objection and the Court fixed the dates of 3 and 4 June 1932. 3 June was a holiday and on 4 June the case was taken up. There were two learned Counsel on behalf of Lachhmi Narain. One of these learned Counsel appeared in Court and moved an application for further adjournment on the ground of a medical certificate stating that his client was ill and had been ill for 5 or 6 days and would be ill for a further 10 days There was also the question of the witnesses who had been summoned for that date. A large number of witnesses had been summoned. Learned Counsel for Lachhmi Narain stated that he did not know whether these witnesses had attended or not and that he had no instructions except to move for adjournment. The Court passed the order that the case must proceed under Order 17, Rule 3, and that if counsel, desired, the evi-dence of Lachhmi Narain could be taken on commission. Counsel however did not take any further steps in the case.

(2.) The result was that the Court heard no-evidence on behalf of Lachhmi Narain as none was produced, and two witnesses were tendered on behalf of the opposite party, and the Court passed a decree disposing of the suits on the merits. In this Court it is argued that the case should be treated as one of dismissal for default of appearance and therefore that an appeal would lie against the order refusing restoration under Order 9, Rule 13. In Order 17, Rule 2 there is an explanation added by this Court that no party shall be deemed to have failed to appear if he is either present or is represented in Court by an agent or pleader, though engaged only for the purpose of making an application. As learned Counsel for Lachhmi Narain made an application for adjournment on his behalf the case therefore comes within this explanation and cannot come as a case of default under Order 17, Rule 2. It was not therefore open to the Courts below to dismiss the case for default under Rule 2. The Court has the option either of allowing the adjournment or of refusing the adjournment under Order 17, Rule 3 and the Court in its discretion chose the latter alternative. Learned Counsel argued that Rule 3 .would not apply because he said that the rule only applied where time has been granted on the date fixed for the suit and in the present case time had been granted to Lachhmi Narain on 8 April which was not a date fixed for the suit. We see no reason to accept this view of Rule 3 as there is nothing whatever in the language of the rule which indicates that it could bear such a meaning.

(3.) The language merely is: "Any part to whom time has been granted to produce his evidence or cause the attendance of his witnesses, etc." Rule 1(1) says "the Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them; and may from time to time adjourn the hearing of the suit." These words are perfectly general and the word "adjournment" is not specified to refer to an order on any particular date. We consider therefore that the case came under Rule 3, Order 17 and that being so no application lay for restoration and therefore there can be no revision or first appeal from order to this Court. We therefore dismiss these two first appeals from order and two revisions with costs. One further point may be noted that we (consider that it is not proper for counsel either in this Court or in the Courts below to merely state to the Court that they have no instructions. Learned Counsel should clearly specify what is the reason of their failing to proceed with the case. It may be that they have not received their fee; it may be that their instructions have been withdrawn or it may be some other reason. But whatever the reason is learned Counsel should clearly (state it to the Court. In this case Mr. Khare had filed the pleading on behalf of Lachhmi Narain and his vakalatnama was on the record, and he had therefore no reason to state to the Court on a later date that he had no instructions and to attempt to limit his appearance merely to moving an application for adjournment).