The presence of counsel was considered as the presence of the party, and the default of the party made the judgment of the trial court appealable.

1. The appellant is the plaintiff in a suit for partition. The appeal arises from AS No. 368 of 1978 dismissing the plaintiff's appeal from the decree of the trial court which reads as follows:

"Plaintiff appeals. Rejected. Defendants pressed for costs. Hence the suit is dismissed with costs to the contesting defendants."

The lower appellate court held that the judgment of the trial court was only an order of dismissal for default, the remedy against which could be sought only by an application to set aside the order of dismissal under 0.9 R.9 of the CPC, as stated in 0.17 R.2 of the CPC, and R.3 of that Order has do relevance.

2. The facts relevant to this appeal are: The plaintiff's suit stood posted for trial to 5-4-1978 after a series of adjournments. On that day the plaintiff's counsel presented to the court IA No. 1323 of 1976 praying for adjournment accompanied by an affidavit of the plaintiff. That affidavit was sworn by the plaintiff in the office of the advocate. He stated several reasons for adjournment, one of them being that he proposed to seek permission of the court for amendment of the plaint. On the basis of that affidavit, counsel requested the court to adjourn the case to a future date. That request was refused and the aforesaid "judgment" was made by the court followed by a "decree". Against that judgment and decree, the plaintiff filed an appeal before the lower appellate court contending that the decree was appealable by reason of 0.17 R.3 of the CPC

3. The lower appellate court stated that only counsel was present in the trial court on 5-4-1978 because, apart from the affidavit of the plaintiff sworn in counsel's office on the date of the trial, there was no evidence that the plaintiff himself was personally present in court. On that assumption the court concluded that R.3 of 0.17 of the CPC did not apply because the party was not present. The court consequently held chat it was R.2 of 0.17 of the CPC that applied and, therefore, the "judgment" was not appealable.

4. Counsel for the appellant submits that where the party or his counsel was present, R.3 was attracted. He further submits that the party was in fact present, as is clear from the affidavit sworn on the very same day in the office of the advocate. No other evidence needs to be produced to show that the party was present.

5. In my view 0.17 R.3 of the CPC was satisfied if either party or his counsel was present and the party was in default of any of the matters specified under that rule. Evidently there was default in so far as neither counsel nor the plaintiff was in a position to go on with the evidence. Counsel was admittedly present. The presence of counsel was in law presence of the patty who had been summoned to appear either in person or by counsel.

6. In the circumstances, even assuming that the plaintiff was absent - I do not see why that assumption is warranted, if he was present in the office of the advocate to swear the affidavit-the presence of counsel and the default of the party together attracted R.3, thereby making the judgment of the trial court appealable. Accordingly this appeal is allowed and the decrees of the courts below are set aside. I direct the trial court to proceed with the trial of the suit from the stage at which it was prior to the judgment of that court rendered on 5-4-1978. No costs.

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