The appearance of a party through a lawyer is necessary for the purposes of Order 9, Rules 6 and 8 CPC, and mere physical presence in court does not constitute an appearance.

( 1 ) THIS Rule is directed against an order of dismissal of an application under Order 9 Rule 9 of the Code of Civil Procedure which has been affirmed by the learned District Judge. Howrah.

( 2 ) THE original suit, namely, Title Suit No. 79 of 1959 was m-ought by the plaintiff, a lady, for setting aside a kobala on allegations of fraud. The date fixed for peremptory hearing of the suit was February 8, 1960. On the 6th of February, the plaintiff tiled a petition for adjournment or, rather, for shifting the date of peremptory hearing on the ground that the lawyer already existing on the record, Shri Jitendra Nath Chowdhury, was unable to conduct her case owing to old age and ill health and that she had engaged a senior lawyer Shri Kanai Lal Ghose for the purpose; but, because Shri Ghose was engaged in other cases fixed on the date of hearing of this case, that is, February 8, 1960, the plaintiff was seeking for a postponement of the date of hearing. On the 6th, nobody appeared to move the petition for shifting the date of hearing and the court put it up for orders on the 8th. On the 8th, Shri Ghose appeared and moved the petition which was, however, refused and the court directed that the suit should be heard on the merits later in the day. But Shri Ghose did not appear again, nor did any other lawyer appear on behalf of the plaintiff and the suit was, accordingly, dismissed for default. The petition of the plaintiff under Order 9, Rule 9 of the Civil Procedure Code for setting aside the order of dismissal for default was dismissed by the learned Munsif on the ground that "neither the plaintiff nor her lawyer Jiten Chowdhury had any sufficient or even reasonable ground for not appearing before the court when the case was taken up for hearing". As regards Shri Ghose the observation of the learned Munsif is as follows:"the only other reason for the plaintiffs non-appearance at the time when the case was taken up for p. (Peremptory) hearing is the other engagement of the lawyer Kanaibabu and his inability to prepare the case. But the record does not prove that Kanaibabu was actually engaged on 6-2-60 and admittedly no vokalatnama was filed appointing him as a lawyer in the present case. Even if it be a fact that Kanai Babu was approached on 6-2-60 for conducting the case and he at once expressed his inability to prepare the (case) within 8-2-60 still this cannot be sufficient reason for non-appearance. "on the above materials, the learned Munsif went to the extent of observing as follows :--". . . . . the fact of the present case disclose the tendency to have adjournments on flimsy grounds and when such adjournments are rejected to abstain from appearing on the belief that restoration of dismissed suits would be achieved as a matter of course I think that such a practice should not be encouraged by allowing the present restoration case as no reasonable or sufficient cause has been proved by the plaintiff. "

( 3 ) I would have been happy to agree with this observation for, tro court should encourage adjournments on flimsy grounds. But to approach a case on a priori considerations such as this is likely to lead to gross injustice and in the refusal of justice to deserving cases rather than to suppress flimsy excuses. We have, therefore, got to decide whether the facts of this case warrant such a reflection.

( 4 ) WHEN we come to the judgment of the lower appellate court, the learned Judge seems to hold that, even if Shri Ghose was otherwise engaged on the 8th, the plaintiff should have had her case conducted by the earlier lawyer Shri Chowdhury. On this point, the observations of the Judge are as follows:"the learned Munsif observed in his order rejecting the prayer for adjournment that there was another lawyer for the plaintiff and so, there was no difficulty even if Kanai Babu (Ghose) was unable to conduct the suit. It is clear from the evidence and the circumstances that even the senior lawyer might be able to cond