- (1.) THIS second appeal has been directed against the order of the Revenue Appellate Authority Kota dated the 3rd or January, 1966.
(2.) THE facts of this case are that the hearing of first appeal in the court of the Revenue Appellate Authority was fixed on 27th of April 1965. Though Ali Moha- mmad appellant was present but he made an application requesting for an adjournment on the ground that his counsel had to go outside head quarters to attend an important murder case. THE request for adjournment was not granted and the appellant was himself asked to argue the case. THE appellant obviously could not argue the case as it involved a number of legal issues. An ex parte order was, however, passed by the learned Revenue Appellate Authority. An application was made for setting aside this ex parte order and giving opportunity to the counsel for the appellant for arguing the case. THE learned Revenue Appellate Authority held that the plea taken by the counsel for the appellant was untenable as the application for adjournment had been refused, and the case was decided after hearing the appeal ex parte. He, therefore, dismissed this application for setting aside the ex parte order. The plea taken by the learned counsel for the appellant before us was that the physical appearance of his client was in law no appearance at all. He relied on a number of authorities such as (1) 1939 Allahabad 451, (2) 1945 Madras page 200, (3) 1951 Patna page 291. The facts in Allah Bux vs. Budha and others, 1939 Allahabad p. 451 are that the appellant's counsel being engaged elsewhere could not come when called out for hearing. The appellant engaged another counsel who after reading record of the Court for some time informed the Court that he could not prepare the case and argue appeal. It was held that dismissal of appeal on ground that nobody appeared to argue appeal amounted to dismissal for default of appearance. His Lordship Allsop J. observed "appearance in the legal sense does not mean mere physical presence within a certain local area or a room or any thing of that kind. It means that a party or somebody on his behalf either expressly in words or by his conduct demands an adjudication from the court. It is possible that a party to a suit or other proceeding might physically be present in a court and might not make his presence known to it. In these circumstances there is no appearance in the legal sense the term". In Ganpati China Basawa Satyanarayana vs. Hindu Religious Endowments Board (1945 Madras page 300) the vakil of the appellant being ill was not present in court and the appellant himself though physically present in court had no intention of conducting the appeal and could not do so. It was held that the mere physical presence of the appellant did not mean his presence for the purpose of conducting the proceedings. As the vakil so authorised to appear for the appellant was absent, the court was bound to treat the appeal as one in which the party was absent, and to dismiss it for default". In Ganeshram vs. Baikunthesh Prasad Singh (1951, Patna p. 291) the counsel for appellant made an application for adjournment which was rejected. He withdrew on the ground that he was not ready to argue the appeal and the appellate court dismissed the appeal for default of the appellant. It was held that this was dismissal within the ambit of O. 41, r. 17. It was further observed that the mere presence of the appellant in the court does not make any difference for unless he is there for purpose of conducting his case, there is no appearance. We have carefully gone through, these rulings and we have no hesitation in holding that if the appellant is present, and his counsel is unavoidably absent, the appellant asked for adjournment on the ground that the could no argue the case the dismissal of the appeal comes within the ambit of O. 41 r. 17, i. e. it would be dismissed in default and not on merits. This principle, however, in our opinion cannot be extended to cases where the counsel is present and asked for an adjournment on the ground that he was not ready to argue the case. In such a case if an adjournment is prayed for the court will have to use its discretion. For the reasons given above we accept this appeal and direct that the application filed by the appellant should have been treated as under O. 41, r. 19 as the counsel was prevented from appearing for unavoidable reasons. The appeal should have been re-admitted. We order accordingly and direct that the appeal may be re-heard by the Revenue Appellate Authority giving proper opportunity to both the parties in accordance with law. . ;