DESAI, J. - (1.) THIS appeal, which came up for hearing before Mithan Lal, J. has been referred by him to a larger bench, because the question involved in it is of general importance and has not been answered by any authoritative decision.
(2.) RESPONDENT No. 1 sued the appellants for partition of joint sir and khudkasht land claiming that she had a one-third share in it and that the appellants had the remaining two-third share. The suit was contested by the appellants who contended that the plaintiff-respondent was not in possession at all, that they had been in exclusive and adverse possession for more than 12 years and that the respondent was not entitled to partition. The respondent claimed to have inherited one-third share in the land in dispute from her father, who had died more than 25 years ago and who was a co-sharer along with the appellants of the land in dispute. The appellants did not plead either that the respondent never obtained possession over her share after inheritance or that she was dispossessed after entering into possession. They vaguely pleaded that they were in adverse possession for more than 12 years. They did not deny possession of the respondents father. They also did not plead that they were in possession from a particular time. Their counsel in his examination under O. 10, R. 2 stated clearly that the respondent had one-third share once and retained it if not lost by adverse possession. The trial Court framed an issue whether the appellants had acquired title by exclusive possession for more than 12 years and answered it against them. It relied upon a judgment dated 22-2-1946 in a suit for her share, in the profits brought by the respondent against the appellants which was decreed in her favour. This judgment showed conclusively that the respondent was in possession till 1948 at least and that the appellants possession, even if actual, was not adverse to her. The present suit instituted in January 1955 was within 12 years of that date and the trial Court decreed the suit. The appellants filed an appeal which was disposed of by an Additional Civil Judge. He fixed 5-1-1960 for the hearing of the appeal. On that date Munnu Lal Sharma, counsel for the appellants, appeared and made the vague statement that he had no instructions. The learned Civil Judge did not enquire from him what he meant by saying that he had no instructions, proceeded to hear the appeal on merits, heard the respondents counsels arguments and reserved Judgment for 12-1-1960, on which date he dismissed the appeal holding that the appellants possession being that of co-sharer was not adverse to the respondent and that they had acquired no title by adverse possession. On the very next day i.e. 13-1-1960 Munnu Lal Sharma without filing a fresh vakalatnama applied for restoration of the appeal treating it as having been dismissed in default. The reasons given by him in the application were that Kali Charan, appellant and Pairokar, had fallen ill, that he had sent information by wire to his lawyer but it had not been received by him and that consequently the appeal was heard in the appellants absence and dismissed on 12-1-1960. The application was dismissed because the appeal had been dismissed not in default but on merits. Then they filed this second appeal. Mithan Lal, J. has referred the whole appeal to this beach for decision. The important question that arises is whether the appeal could have been heard on merits by the learned Civil Judge or should have been dismissed in default under O. 41, R. 17, Civil P.C.
(3.) THE relevant provisions in the Code of Civil Procedure are contained in O. 41 and O. 3. When an appellate Court does not dismiss an appeal summarily it should fix a date for the hearing of it and notice of the date should be affixed in the appellate Court house and should be served on the respondent or on his pleader; vide Rr. 12 and 14 of O. 41. Rule 17 lays down that where on the day fixed, or any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed." This Court has amended this provision to read as "where the appellant doss not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed." Order 3 deals with recognized agents and pleaders. Any appearance in any Court required or authorised by law to be made or done by a party in person or by his recognised agent or by a pleader, vide rule 1. No pleader can act for any person in any Court unless he has been appointed for the purpose by the person by a document in writing and such appointment must be died in the Court and "shall be deemed to be in force until determined with the leave of the Court" by a writing signed by the person or the pleader and filed in the Court, or until all proceedings in the suit are ended so tar as regards the person; see sub-cls. (1) and (2) of R. 4.;