Authimoolan Pillai vs THE Secretary of State for India in Council

This petition arises out of an order of the Subordinate Judge refusing to restore a suit dismissed by him. The facts are shortly these. The plaintiff

who is a resident out of British India filed this suit against the Secretary of State for India in Council to recover certain sovereigns which were

confiscated. As he was away out of British India an application was made for security for costs and security was ordered. He did not give security

within the time but filed an application for extension of time to give security. As regards the suit itself it was adjourned more than once and the final

disposal of the suit and the petition to extend the time for security came on together. An order was passed extending the time and accepting the

security but when the case was taken up the plaintiff''s Pleader said that he was not prepared to go on as the witnesses subpoenaed were absent.

The party was also present at that time and he too was not prepared to go on with the result that the Subordinate Judge dismissed the suit.

It is argued before us by Mr. Venkataramana Rao that the dismissal was not one for default but one under Order XVII, Rule 3 as the Judge

asked the plaintiff to give evidence but he did not do so. It is contended by Mr. Krishnaswami Aiyar on the other side that the Subordinate Judge

dismissed the suit really because the plaintiff was not prepared to go on and there was no order requiring him to give evidence on a particular date

which was disobeyed and also states that the Full Bench ruling in Prativadi Bhayankaram Pichamma alias Mangamma Vs. Kamisetti Sreeramulu

and Others, settles the question as to what is to be done in case a party does not appear even though there is an order of Court directing him to do

a certain act on a particular date. It is unnecessary to consider this question further as the order of the Subordinate Judge itself shows that the

learned Judge treated it as one for default of appearance and not as one for failure to do a particular act which he required the party to do.

Treating the case as one for dismissal for default the question is whether a suit can be dismissed under Order XVII, Rule 2 where the Pleader and

the party are both present in Court and the Pleader says that he is not prepared to go on and the party also says that he is not prepared, to go on.

On this question, the balance of authority is in favour of the view that such a dismissal would amount to one under Order XVII, Rule 2 which

corresponds to old Section 157. The decisions in Gopala Row v. Maria Susaya Piltai 30 M. 274; 17 M. L. J 225 and in T. Kaliyappa Mudaliar

Vs. Kumaraswami Mudali by next friend Poongavanammal, which, are decisions of Benches support the contention of the appellant that where a

Vakil says he has no instructions, the presence of a party in Court would not take the case out of the category of the ""dismissal for default of

appearance."" We may point out that under the Civil Rules of Practice the party cannot conduct his case so long as the vakalat to his Vakil is in

force (page 2 of the Rules and Orders) and under Order III, Rule 4 of the CPC the vakalat can be cancelled only in the manner stated therein. No

doubt the view in Gopala Roto v. Maria Susaya fillai 30 M. 274; 17 M. L. J. 225 and T. Kaliyappa Mudaliar Vs. Kumaraswami Mudali by next

friend Poongavanammal, has not been approved by Single Judges of this Court. In C. M. A. No. 69 of 1925 Madhavan Nair, J., was prepared to

follow the view taken in T. Kaliyappa Mudaliar Vs. Kumaraswami Mudali by next friend Poongavanammal, while Curgenven, J., took an opposite

view. Odgers, J., was inclined to take a different view in Viswanatha Asari v. Sami Asari 73 Ind. Cas. 982; 18 L. W. 209; (1923) M. W. N. 802;

A. I. E. 1924 Mad 43. But it is pointed out in T. Kaliyappa Mudaliar Vs. Kumaraswami Mudali by next friend Poongavanammal, that the balance

of authority of the other High Courts is also in favour of the view taken by two Benches of this Court. Such being the case, we do not think it

necessary to dissent from the current of authority and to hold that where the party is present when his Vakil says he has no instructions it makes the

order inapplicable. As to the phrase ""no instructions."" it is difficult to lay down any hard and fast rule as to what is meant by it. ''No instructions'' is

sometimes used when a party does not pay the fees to the Vakil; it is sometimes used when he does not go to him at all and it is used just to show

that he is not ready to go on. Generally, where a Pleader says he is not ready to go on and does not go on, it is difficult to see how the dismissal

can be said to be anything else than a dismissal for default. We say nothing about the merits of this case and we direct the Subordinate Judge to

take the application on its merits and see if sufficient cause has been, shown for restoring the suit. Costs to abide and follow the result of the

application.