1. The facts of this case are as follows:--
The applicant before us was a plaintiff in a suit for a declaration that an entry in a Record of Rights was incorrect. The case was instituted on the 28th of January 1916. On the 26th February 1917 an order was recorded in the order-sheet:--
The plaintiff appears on call but does not prosecute the case. Defendant is ready. Ordered that the suit be dismissed for plaintiff's default with costs to defendant.
2. On the 24th March 1917 an application was made for restoration of the case under Order IX, rule 9. The learned Munsif, who had himself recorded that the case was dismissed for the plaintiff's default on the 26th February. 1917, recorded on the 16th June 1917 that it was not dismissed for default and that, therefore, he had no jurisdiction to make any order restoring it. The plaintiff, therefore, applies to this Court in revision asking us to set aside the order made on the 16th June 1917.
3. It is contended on his behalf that the plaintiff's appearance and refusal to prosecute amounted to a non-appearance, and that the learned Munsif on that date rightly recorded the matter as a case of default, and that, therefore, the learned Munsif was bound by law to take up, on the plaintiff's application, the question whether under Order IX, rule 9, it should be restored. By the opposite party it is contended that Order IX, rule 9, being appealable, this Court has no power to interfere in revision. It is obvious, that there is no order under Order IX, rule 9, against which an appeal would lie. What the Munsif has actually done is to refuse to exercise jurisdiction in the matter at all. We are, therefore only concerned with the question whether in fact the order made on the 26th of February was an order under Order IX, rule 8. We are of opinion that the view taken in the case of Gopala Row v. Maria Susoya Pillai 80 M. 274; 17 M.L.J. 225 is correct. A party may appear in two ways, either by person or by Pleader. If he is not appearing in person, the mere fact that he is standing in Court does not amount to an appearance within the real meaning of the word. It could not be suggested for instance that if when a case was called on, a litigant stood up at the back of the Court and applied for a few minutes' time to bring his Pleader he would be appearing in the true meaning of the word. We are aware that a different view was taken in Esmail Ebrahim v. Haji Jan Mahomed Haji Mahomed 3 Ind. Cas. 992 ; 33 B. 475; 10 Bom. L.R. 1172, but are of opinion that the Madras decision should be followed. The Calcutta cases seem to have gone still further, that even when both plaintiff and his Pleader are present in Court, if the Pleader declines to proceed with the case there is in fact no appearance. It is sufficient for us to say that where the plaintiff is not appearing in person, and his Pleader is absent, the presence of the plaintiff in Court is not an appearance. We hold that the order of the 26th February 1917 was an order made under Order IX, rule 8, and that the learned Munsif was required to deal with the matter under Order IX, rule 9. He will now proceed to do so.
