1. The land of the petitioner situated in Mohal Bhojpur District Mandi was acquired under the provisions of the land Acquisition Act. Som Krishan respondent dissatisfied with the award made a reference under Section 18 of the Land Acquisition Act before the District Judge who enhanced the amount of compensation by Rs. 1,112.12 Paise. The Collector filed an appeal which was heard by the learned Additional Judicial Commissioner. The appeal was accepted on February 22, 1965, and the case was remanded to the District Judge, Respondent Som Krishan was also allowed an opportunity to adduce evidence provided he paid Rs. 75 as costs. It is the case of the Collector that Som Krishan respondent directed to appear before the learned District Judge on March 25, 1965, and also to pay costs on that date. On March 25, 1965 the respondent did not appear but his Counsel Mr. Vidya Sagar who was present in Court made a statement that he had no instructions in the matter. The Court ordered that since costs had not been paid, the reference be dismissed.

2. On March 26, 1965, the respondent Som Krishan made an application for restoration of the reference. It was alleged in the application that the learned Additional Judicial Commissioner had directed the parties to appear on March 26,1965, but the case was by mistake taken up on March 25, 1965, and consequently on that day the respondent could not appear or pay the costs. In support of his plea the respondent relied on a notice Ex. AW1/A issued by the Court of the District Judge asking the respondent to appear on March 26,1965. The original of the notice sent to the petitioner and returned to the District Judge was not available and the learned District Judge observed: This confusion had cropped up only on account of the fact that the original notice had been misplaced or being withheld or by whom is difficult to be said with certainty. But responsibility can be cast on the Ahlmad. It is for this reason that a misunderstanding was created in the mind of the petitioner (Som Krishan) regarding the date. In the copy of the notice Ex. A.W.1/A the figure 2 is written in pencil but 6 in the ink and the learned District Judge was of the opinion that: On this notice there is also interpolation about the date. The figure of 2 is in pencil while the figure of 6 is in ink. It is not known who made this figure of 6. The learned District Judge also held that the date for which the petitioner was to be served is 26th March, 1965 in the Civil Nazarat registers at Mandi as well as at Sundernagar. After taking evidence the learned District Judge by his order dated April 18,1966 decided that there was sufficient cause for non-appearance of Som Krishan on March 25,1965, and directed the restoration of the reference under Order 9 Rule 9, Civil Procedure Code.

3. Aggrieved by the decision of the District Judge the Collector has now come up in revision under Section 35 of the Himachal Pradesh (Courts) Order, 1948. Under the said Section the Court has power to rectify errors of jurisdiction and further consider important questions of law or custom involved in the case. The decision of the learned District Judge as to the existence of the sufficient cause, based as it is on evidence, does not raise any question of jurisdiction or question of law, much less important question of law, within the meaning of Section 35 of the Himachal Pradesh (Courts) Order, 1948.

4. The learned Counsel for the petitioner argued that wrong inferences of facts had been drawn from the evidence on record and that raised an important question of law. I am afraid I cannot agree. The finding on the sufficiency of the cause for the non-appearance is a pure finding of fact which I am not competent to interfere.

5. The learned Counsel for the petitioner then contended that the order of the learned District Judge dismissing the reference was an order under Order 17, Rule 3, Civil Procedure Code, and consequently the provisions of Order 9, Rule 9 did not apply the remedy of the person aggrieved by order under O.17, R.3., C.P. Code, being either to file an appeal or application for review. He further contended that provisions of O-17, R.2, Civil Procedure Code, did not apply as the Counsel for Som Krishan respondent was present in Court on March 25, 1965, though he stated that he had no instructions in the matter. In support of the above proposition, he relied on Panna Lal v. Bishan Devi AIR 1946 All. 353 [LQ/AllHC/1946/25] . That decision is of no avail to the petitioner. In that case on the date fixed for the final disposal of the case the plaintiffs Counsel appeared and filed an application for adjournment. The application was refused and thereupon the plaintiffs Counsel stated the he had no further instructions to proceed with the suit. The Full Bench of the Allahabad High Court decided that in view of Explanation added by the Allahabad High Court to R 2 of O-17, C.P. Code, the order dismissing the suit for default of the plaintiff could not be treated as an order under R.2 of Order 17, C.P. Code. The said Explanation which does not apply to Himachal Pradesh reads as under:

"No party shall be deemed to have failed to appear if he either present or is represented in Court by agent or pleader though engaged for the purpose of making an application."

6. Before a party can be treated as represented by a lawyer for the purposes of O-17, R. 2, it is necessary that the lawyer should have been duly instructed and able to answer all material questions relating to the suit. A lawyer appearing without any instructions cannot be treated as present on behalf of a party. Where a Counsel says that he has no instructions the inference is that he is not authorised to appear on his clients behalf and his appearance is tantamount to no appearance at all.

7. Order 3 Rule I and Order 5, Rule 1, Civil Procedure Code, also shed considerable light in support of this proposition. In this case the Counsel Mr. Vidya Sagar had on March 25, 1965 stated that he had no instructions. It must, therefore, be held that on that day there was no appearance by or on behalf of Som Krishan respondent. Panna Lals case is based on the explanation where the scope of Rule 2, Order 17, C.P. Code, had been extended and appearance of a Counsel instructed to make an application was treated as appearance in the suite. That is not the case here. Rule 2 of Order 17, Civil Procedure Code, could, therefore, apply. Rule 3 of Order 17 is not mandatory as appears from the words "the Court may........". The provisions of Rule 3 are penal and should be resorted to only if the facts do not admit of the application of any other provision. Moreover, under the said provision the Court is enjoined to decide the case on merits on consideration of such materials as may be available. This provision does not entitle a Court to make a summary decision by way of penalty. The jurisdiction of the Court is "to decide the suit forthwith and the provision Will not apply if the Court has not decided the suit on merits. In all such cases the substance of the order has to be examined to find out whether the order is made under Rule 2 or Rule 3 and unless the facts and circumstances clearly lead to the conclusion that the order was made under Rule 3, it should be treated as one under Rule 2. In case where a party to whom time had been given for doing an act mentioned in Rule 3 commits default in doing of that act and also absents himself on the date of hearing, different Courts have taken different views as to which of the two rules Rule 2 or 3 of Order 17, should be applied. Some High Courts hold that in such cases the Court should proceed under Rule 2 while others take the view that the Court can proceed under Rule 3, if there exist materials on record enable it to come to a decision on merits otherwise the Court should proceed under Rule 2. I need not address myself on this controversy as in my opinion the Court did not decide the matter on merits but acted under Rule 2. My conclusion, therefore, is that the order made by the District Judge on March 25, 1965, was not made under Rule 3, Order 17, Civil Procedure Code, and he was competent to pass the impugned order, restoring the reference.

8. This petition, therefore, fails and is dismissed with costs.