The main legal point established in the judgment is the court's interpretation of appearance and presence of counsel in the context of Order 17 Rule 2 and Order 17 Rule 3 of the Code of Civil Procedure, 1908, and the discretion of the court to proceed with the case or make such other order as it thinks fit.

1. This motion has been filed on behalf of the plaintiffs for restoration of the suit, which was dismissed by this Court on 22nd October,2007 for non-prosecution.

2. An affidavit in support of the motion has been filed by an Assistant Advocate working with M/s. Gordhandas & Fozdar, Advocates for the plaintiffs. The suit was instituted in September 1977 and it was numbered sometime in 1979. The suit is filed for damages in a sum of Rs. 3,62,920/- together interest @ 15% per annum from the date of the suit till payment, in respect of non-delivery of goods to the plaintiffs by the defendants. The evidence was recorded before the Commissioner appointed in the matter. The suit was then kept for arguments before the Court. The arguments on behalf of the defendants by their Counsel were advanced and completed and the arguments on behalf of the plaintiffs, were partly heard. Thereafter because of the change of the assignment, the matter was notified before another Judge.

3. On 22nd October, 2007, when the matter was called out, the deponent who has affirmed the affidavit in support of the motion and who is a junior lady Advocate, working with Gordhandas & Fozdar, Advocates for the plaintiffs, appeared and sought an adjournment on the ground that the plaintiffs’ Counsel was hospitalised on 7th October, 2007 and he was discharged after a week and was advised bed rest for 10 more days and, therefore, the Counsel could not remain present on that day. It is stated in the affidavit that the advocate on record who is the Senior of the deponent was out of station on 22.10.2007 for his personal work and no arrangement could be made for appointing another Counsel for arguing the matter. It is further averred by the deponent that she, being a new entrant in the profession, had no instructions and was not able to argue the matter. However, as the Court was not inclined to adjourn the matter, the matter was initially kept back and was ultimately dismissed for non-prosecution in the afternoon session.

4. The learned Counsel for the plaintiffs at the outset asserted that it was not open for the Court to dismiss the suit for non-prosecution. According to the learned counsel, the learned Single Judge ought to have either granted the adjournment or proceeded with the case and passed appropriate judgment in the suit on merits as the evidence was over in the matter and was on record. The learned Counsel contended that sufficient grounds were made out for the Counsel to have not remained present before the Court on that day and that the advocate on record was also out of station for his personal work. It is submitted that the junior Advocate was not having any instructions in the matter and being a new entrant, she could not have argued the matter. It is therefore urged that the suit be restored to file and be heard on merits.

5. The learned Counsel for the defendants, on the other hand, pointed out that the suit was instituted sometime in 1977. He submitted that neither the Counsel, nor the advocate on record was present and the junior Advocate was not in a position to argue the matter. The Ld. Counsel contended that in these circumstances it was open for the Court to have dismissed the suit on account of non-prosecution. He drew my attention to the observations made in para 2 of the impugned order, wherein the learned Single Judge has observed thus - "It was made clear that if the Counsel appearing for the plaintiffs failed to appear, in that case, the advocate on record should take responsibility of pursuing the matter". He submitted that no sufficient cause is made out for restoration of the suit and urged that the Notice of Motion be dismissed.

6. I have heard the learned Counsel for the parties and perused the material on record.

7. Order 17 Rule 2 of the Code of Civil Procedure, 1908, provides the course for the Court to adopt in such a situation viz. where the parties fail to appear on a day when the case is fixed for hearing. Order 1