ORDER M.P. Mehrotra, J.
1. This petition under Article 226 of the Constitution of India arises out of the proceedings relating to a Civil Suit, It is not necessary to state the facts and controversies which were involved in the Original Suit No. 367 of 1980 which was pending in the court of the Munsif I, Rampur. However, the relevant brief facts may be noticed, 13-5-1981 was the date fixed for framing of issues. On the said date the case was called out and it was dismissed with costs by an order dated 13-5-1981, a true copy of which is Annexure 9 to the petition. The order is reproduced below:--
"Case called. Sri A. R. Siddique Advocate Counsel for the plaintiff pleads that he has no instructions. This case yesterday came before me with an application on behalf of the defendant and it was opposed by the counsel for the plaintiff and as he was not ready case was adjourned for today. The learned counsel, therefore, cannot plead no instructions.
There issues have to be framed on the pleadings of the parties but learned counsel for the plaintiff hesitates to cooperate with the Court. It is, therefore, futile to crown a sleeping pig. Since the case was adjourned on the request of learned counsel for plaintiff and not present also when he was asked to help the framing of issues he pleads for dismissal of the suit. I have no hesitation to accept his proposal.
Suit is accordingly dismissed with costs."
2. Thereafter, an application was moved by the plaintiff-respondent No. 5 in this petition purporting to be under Order 9, Rule 9, C. P. C. The prayer was that the order dated 13-5-1981 dismissing the suit, be set aside and the suit be restored. The application was rejected by the trial court by its order dated 29-9-1981, a true copy of which is Annexure 10 to the petition. The plaintiff-respondent No. 5 felt aggrieved and filed an appeal against the said order and the same was allowed by the appellate court by the impugned order dated 3-8-1982, a true copy of which is Annexure 1 to the petition.
3. Feeling aggrieved against the aforesaid appellate order (Annexure 1 to the petition) the defendant has come up in the instant petition and in support thereof I have heard Sri R. P. Goyal.
4. Sri Goyal contended that the appellate court was wrong in holding that the order passed by the trial court dismissing the suit on 13-5-1981 was one under Order 9, Rule 8, C. P. C. According to the learned counsel the said order was a judgment on merits and therefore, the only course which was open to the plaintiff, was to file an appeal against the same and no application under Order 9, Rule 9, C. P. C. was maintainable. In this connection, learned counsel emphasised that 13-5-1981 had been fixed for the framing of issues on the request of the learned counsel for the petitioner who, on the preceding day, was not ready and had sought adjournment for the following day. Learned counsel also emphasised that the plaintiff's counsel himself prayed to the court that the suit be dismissed. In this connection, it was emphasised that the counsel's authority was still continuing and, therefore, he was entitled to make the said prayer to the court on behalf of his client. Lastly, it was contended that since the plaintiff's counsel was present and had prayed for the dismissal of the suit in view of the authority which he had on behalf of the client, therefore, it could not be treated to be a case of absence of the plaintiff on the date in question. The plaintiff should be deemed to be present through his counsel.
5. A reference was made to certain case law which is as under:--
1. Sewaram Udaji v. Munna Moti, (AIR 1959 Madh pra 5).
2. Rajendra Kishore v. District Cooperative Development Federation Ltd. (1965 All LJ 575).
3. Ratan Chand Gulati v. Brij Bhushan Lal (1969 All LJ 264).
4. Administrator General of West Bengal v. Kumar Purnendu Nath Tagore (AIR 1970 Cal 231).
5. M.S. Khalsa v. Chiranji Lal (1976 All LJ 379) ; (AIR 1976 All 290) (FB).
6. In the judgment of the appellate court a reference has been made to M. S. Khalsa v. Chiranji Lal (supra) and Bijli Cotton Mills Private Ltd. v. Chhaganmal Bastimal (AIR 1982 All 183). Gulvir Singh v. Tara Chand (AIR 1982 All 250) was distinguished by the Appellate Court. A reference may also be made to the following cases;
1. Juggilal Kamla Pat v. Ram Janki Gupta (AIR 1962 All 407).
2. Nandan Sahu v. Hari Shanker (AIR 1932 All 595).
7. I shall briefly discuss the aforesaid case law as under :
In Sewaram Udaji v. Munna Moti (AIR 1959 Madh Pra 5) (supra) it was laid down that where a suit was dismissed under Order 10, Rule 4 (2), C. P. C. the same precluded the application of Order 9, Rule 8, C. P. C. Inter alia, it was observed as follows:--
"In the instant case, on 13-8-1952 the plaintiff failed to appear in person though directed by the Court. His pleader was present in the Court. But he did not say that he had no instructions to appear on behalf of the plaintiff, or that the plaintiff was unable to appear on account of his illness. As the plaintiff was represented by a counsel duly instructed, the suit could not clearly be dismissed for default of the appearance of the plaintiff under Order 9, Rule 8, C. P. C. and indeed it was not under that provision that the plaintiff's suit was dismissed on 13-8-1952".
8. The Madhya Pradesh Court distinguished the case reported in Nandan Sahu v. Hari Shankar (supra) by observing as follows:--
"The decision in AIR 1932 All 595 (A), cited by the learned counsel for the petitioner, is distinguishable on the ground that in that case the plaintiff was absent and his counsel who was present in the Court stated that he had no instructions. Thus there was no appearance on behalf of the plaintiff and it was because of this non-appearance of the plaintiff that the order of dismissal of the suit was regarded as one made under Order 9, Rule 8, C. P. C."
9. So far as the three Allahabad cases namely 1965 All LJ 575, 1969 All LJ 264 and 1976 All LJ 379 : (AIR 1970 All 290) are concerned, they are clearly distinguishable on the grounds that in those cases the controversy arose with reference to the provisions of Order 17, Rule 2 or Rule 3, C. P. C. In the instant case, it, should be seen that Order 17 cannot be said to be attracted because the issues had not been framed and, therefore, there could be no question of the applicability of Order 17, Rule 3, C. P. C. In the Full Bench Decision in 1976 All LJ 379: (AIR 1976 All 290) (supra) however, reliance was placed on Juggi Lal Kamla Pat v. Ram Janki Gupta (AIR 1962 All 407). The Full Bench observed :
"This distinction has been noticed in Juggi Lal Kamla Pat v. Ram Janki Gupta. In this case, the counsel had moved an application for adjournment on a day prior to the fixed date. On the fixed date he appeared and stated that he had no instructions to press the application moved by him earlier. He then withdrew from the case. It was held that it cannot be said that counsel had appeared for a party for the purpose of moving or pressing an application."
10. The Full Bench also approved the following observations of the Division Bench in Gopal Singh v. Kailash Gir (AIR 1933 All 652).
"We consider that a distinction is to be drawn between the case of a pleader who states that he has no instructions and the case of the pleader who states that he has instruction for a limited purpose of making application for adjournment etc. We consider that the case of a pleader who says he has no instructions does not come under the Explanation to Rule 2 of Order XVII. If we were to hold otherwise and accept the argument of the learned counsel for the respondent, we would be holding that it was impossible for a pleader who wishes to withdraw from a case to do so, and we do not consider that there is any authority under this Explanation to the Rule or otherwise for such a proposition."
11. So far as AIR 1970 Cal 231 (supra) is concerned it was laid down that before Order 9, Rule 8, C. P. C. can be applicable, the suit should be fixed for hearing. The Court referred to Rules 35 and 35-A of Chap. X of the Rules of the Original Side of Calcutta High Court, and it was laid down that where the suit appeared in the list under Rule 35 or Rule 35-A, it could not be said that the suit was fixed for hearing. If a suit is dismissed for non-prosecution on such a date, it could not be said that the suit had been dismissed in default on the date of hearing and therefore, Order 9, Rule 8, C. P. C. did not apply and no application lay under Order 9, Rule 9, C. P. C. However, it was held that in such circumstances, the court could entertain the application treating the same to be one under Order 47, Rule 1, C. P. C. In this connection it has to be seen that admittedly the suit was dismissed in the instant case on the date when it was fixed for framing of issues, and there can be little doubt that the said date was the date of hearing vide Sangram Singh v. Election Tribunal Kotah (AIR 1955 SC 425). In AIR 1932 All 595 Nandan Sahu v. Hari Shankar (supra) the Division Bench laid down that a case could be dismissed for default of appearance under Order 10, Rule 4 (2), C. P. C. and therefore, Order 9, Rule 8, C. P. C. and Order 9, Rule 8, C. P. C. would be attracted to a situation where the court dismisses the suit for default of appearance under Order 10, Rule 4 (2), C. P. C. It is also important that the Division Bench laid down that where a counsel states no instructions then it amounts to a case of default of appearance. It was observed :
"On this last date, namely, the 12th January, 1931, the defendant with Ms pleader was present, but the plaintiff was absent. It further appears that his learned pleader made a statement in Court that he had no instructions to go on with the case. The result was that the plaintiff was absent."
12. In my view, the aforesaid case law is very clear and there can be little doubt that when a counsel states in a court that he has no instructions on behalf of his client and withdraws from the case, then it is not a situation where it can be said that the client who is absent should be deemed to be present through his counsel. It was not for the trial court in the instant case to say that the learned counsel for the plaintiff, who stated that he had no instructions, was not justified in stating so. Once a counsel states that he has no instructions and withdraws from the court then the dismissal of the case has to be treated as one for default of appearance of the party concerned. The question whether the counsel was justified in making such statement might have some relevance while considering whether such a suit dismissed for default of appearance should or should not be restored on an application under Order 9, Rule 9, C. P. C. but it was not for the court to say that the counsel was not justified in stating no instructions, and therefore, the suit should be treated as dismissed on merits. The mere fact that the counsel subsequently suggested to the court that the suit should be dismissed, does not mean that his earlier statement that he had no instructions stood modified or whittled in any manner whatsoever. Most probably a counsel while stating that he has no instructions suggested dismissal of the suit in the event that such a dismissal would be one for default of appearance under Order 9, Rule 8, C. P. C. By no stretch of imagination it can be argued that the counsel wanted the dismissal of the suit to be on merits.
13. The learned counsel for the petitioner in the end submitted that it was not a fit case where the appellate court should have allowed the appeal against the order rejecting restoration application because in the facts and circumstances of the case, the suit was a frivolous one and had become infructuous. In this connection a reference was made to certain facts and circumstances which have been narrated in the writ petition itself. I do not think it proper to deal with the facts and circumstances of the suit itself because it would be for the trial court itself to deal with the same after the restoration of the suit.
14. Accordingly, this petition is dismissed in limine.