FERTILISERS AND CHEMICALS TRAVANCORE LTD Vs. RAJKUMAR LINES LIMITED

JUDGEMENT

(1.) [His Lordship after stating the facts, proceeded]. In view of these contentions before us, the first question that arises in these two appeals is whether the orders passed by Mr. Justice Mody in the two suits on September 10, 1969 were orders under Order IX, Rule 8 or orders passed in the exercise of inherent jurisdiction under Section 151 of the Civil Procedure Code. A perusal of the orders which have been set out above will show that these orders must have been passed under Order IX, Rule 8. In the order passed in suit No. 11 of 1966 Mr. Justice Mody has in terms found that the counsel who appeared for the plaintiffs was unable to answer the questions put to him and even the names of the witnesses were not known to him and the plaintiffs were not even contacted to ascertain as to what evidence was to be led. In suit No, 1 of 1967, whose dismissal followed soon thereafter, a similar note is made in the minutes that the counsel stated that there were 21 plaintiffs and that his instructing attorneys were unable to contact any of them. In the affidavits filed by Jagdish it is averred that Mr. Kotwal was engaged only for the purpose of adjournment or for consenting - to the adjournment asked for by the other parties to the suits. We are told that Mr. Kotwal is a junior counsel. He is appearing before us and he has made a statement that he was engaged only for the purpose of adjournment and he had no instructions whatsoever from the attorneys with regard to the merits of the suits on September 10, 1969. Jagdish has further stated in his affidavit that the attorney who appeared for the plaintiffs was his father Mr. Gordhandas who was ill and was at Surat. Jagdish himself was only an articled clerk. It is not suggested by the defendants that Mr. Gordhandas was present in Bombay between September 6, 1969 and September 10, 1969. In these circumstances, we are emphatically of the opinion that there was no effective appearance whatsoever on behalf of the plaintiffs before Mr. Justice Mody on September 10, 1969. Order IX, Rule 8 provides that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed unless the defendant admits the claim or part thereof. It is common ground that on September 10, 1969, the plaintiffs themselves or their agents were not present in Court. The plaintiffs' attorney was not present in Court. They were only represented by a junior counsel whose instructions were only to ask for adjournment or to consent to adjournment asked for by the other side. The counsel was unable to answer any questions asked by the Court with regard to the conduct of the suit. In these circumstances, it is impossible to hold that the plaintiffs in either of the suits had 'appeared' in Court within the meaning of that expression as used in the Cavil Procedure Code.

(2.) IT is, however, contended by Mr. Ajit Mehta that as the plaintiffs were represented by counsel who claimed to be instructed by the plaintiffs' attorneys, the dismissal of the suit in the facts and circumstances of the case could never be within the ambit of Rule 8 of Order IX. According to him Order III, Rule 1 of the First Schedule to the Civil Procedure Code permits any appearance required or authorised by law to be made (1) by the party in person, or (2) by his recognised agent, or (3) by a pleader appearing, applying or acting, as the case may be, on his behalf. The attorneys for the plaintiffs had filed a warrant of authority under Rule 103 of the Original Side Rules and Forms of this Court and they had, therefore, authority to act on the plaintiffs' behalf. It was stated by Mr. Kotwal who appeared for the plaintiffs that he was instructed by the attorneys. Hence, appearance on behalf of the plaintiffs by Mr. Kotwal was appearance by the plaintiffs within the meaning of Order III, Rule 1 of the Civil Procedure Code as well as appearance for all purposes in Court. He submitted that so far as the defendants were concerned, Order V, Rule 1 made a specific rule when defendant was represented by a pleader that the pleader should be duly instructed and able to answer all material questions relating to the suit, but there wag no such rule regarding the pleader who appeared for the plaintiffs, and hence, as Mr. Kotwal appeared as counsel for the plaintiffs, the plaintiffs had in law appeared in Court on September 10, 1969 through counsel. He also relied on three other circumstances relating to the orders passed in the said two suits. It is not stated in the minutes or in the order that at any stage, the counsel desired to withdraw from the suit for want of instructions; secondly, he relied on the fact that the orders themselves do not say that the suit was dismissed for default of appearance or non -appearance; and thirdly, the reason given in the order in suit No. 11 of 1966 shows that the suit was dismissed because of total lack of preparation and the order in suit No. 1 of 1967 shows that the suit was dismissed as the plaintiffs were not able to go on with the hearing of the suit and hence in substance, both the suits were dismissed for want of prosecution and not for non -appearance as required by Order IX, Rule 8. He relied in support of his submissions on a decision of this Court in Ramchandra Pandurang Nath v. Madhav Purushottam Naik I.L.R.(1891) Bom. 23, and a decision of the Madras High Court in In re Valia Munnadiar A.I.R.[1938] Mad. 495 and contended that these decisions recognised the inherent power in Court to dismiss the suit for default of any kind and hence Mr. Justice Mody had exercised the inherent powers under Section 151 of the Civil Procedure Code in passing the impugned orders.

(3.) APART from that, we find that it is settled law that where parties are not personally present and are represented by pleaders, appearance by a pleader within the meaning of Order IX does not mean mere presence in Court. It means appearance by a pleader 'duly instructed and able to answer all material questions relating to the suit' or by a pleader 'accompanied by some person able to answer all such questions,' as stated in Order V, Rule 1. It is true that Order V, Rule 1(2)(a), (I) and (c) deal with appearance of defendants, but there is weighty authority in support of the proposition that the same rule would apply even with regard to the appearance by the plaintiffs. The words 'appear' and 'appearance' are used in several places in the Civil Procedure Code including Order Ill, Rule 1, Order V, Rule 1, Order IX, Rules 1, 6, 8, 9 and 13 and Order XVII, Rule 2 and considering the scheme of these provisions, it is, in our opinion, clear that there cannot be any difference between the meaning of appearance by a pleader on behalf of the plaintiff and appearance by pleader on behalf of the defendant. The effective appearance by the pleader is possible only when he is duly instructed to answer all material questions or is accompanied by a person who is able to answer all material questions, whether the pleader is appearing for the plaintiffs or for the defendants. On principle, we find no reason whatsoever to make a distinction between the appearance of the pleader on behalf of the plaintiff and the appearance by a pleader on behalf of the defendants. That is why we find no such distinction being made in any of the cases decided by any Court.