The main legal point established in the judgment is that the judge failed to exercise the discretion vested in him by Section 157 of the Civil Procedure Code, and consequently passed an order without reference to its provisions, thereby failing to exercise a jurisdiction vested in him by law.

Davies J.

1. In Appeal No. 17 of 1901. - Following the decision of this Court in the case of Gilkinson v. Subramania Aiyar I.L.R. 22 M. 211, I must bald that there is no appeal in this case and accordingly dismiss this appeal with costs.

2. In appeal against order No. 12 of 1901. - I agree with the District Judge that there was no sufficient cause for the non-appearance of the plaintiffs Vakil in court when the case was called on for hearing and therefore dismiss this appeal with costs.

3. In Civil Revision Petition No. 40 of 1901. - In this case the Judge dismissed the suit under Section 102 of the Code of Civil Procedure for default of the appearance of the plaintiffs Vakil at the time the case was called on. As the case was part-heard and this was an adjourned date of hearing, the appropriate section of the Code under which the Judge ought to have acted was Section 157. Under that section he could either have dismissed the suit for default or passed such other order as he thought fit. The question is whether it was present to the Judges mind when he dismissed the suit for default that he had the option of passing any other order that he thought fit. There is no indication that he did consider that he had an alternative course. The indications are that he did not. In the first place the wording of the order dismissing the suit, namely, that the "plaintiff not being present either in person or by Vakil, the suit is dismissed with costs," would indicate that the dismissal of the suit was a necessary consequence of the non-appearance of the plaintiff. It would seem to imply that there was no alternative. The further order of the Judge on the application to restore the case to the file contains the following "paragraph:--

8. "It cannot be seriously contended that the failure of the pleaders to appear is due to any other cause but negligence pure and simple. It is certainly hard on the plain-tiff that his suit should be dismissed under these circumstances, bat the provisions of the Procedure Code are strict, and I cannot see my way to putting the suit back." The Judge also remarks in para. 9, "I am constrained therefore, though, against my will, to dismiss the application with costs." Thus he deplores the rigour of the law overlooking the latitude it allowed him. This to my mind clearly shows that the Judge .thought that the hardship done was not of his own doing but was attributable only to the law while as a matter of fact his was not so. He could have exercised his discretion and prevented the dismissal of the suit by passing some other order, and his language shows that he would have done so had he considered the provisions of Section 157 of the Code.

4. In the second place, the order passed by the Judge was certainly not an order that any reasonable Judge would have passed under Section 157 of the Code. The plaint was that of a minor. The amount of the claim was about a lac of rupees. The suit was being fought step by step up to the date of its dismissal. Sir V. Bhashyam Aiyangar had journeyed from Madras to prosecute the suit, and its dismissal, in such circumstances, was a penalty upon both the Vakil and his client out of all proportion to the fault of the Vakil in being half an hour late at court. I am therefore satisfied that the Judge did not act under Section 157 of the Code of Civil Procedure. He thereby failed to exercise the discretion vested in him by that section, in other words he failed to exercise a jurisdiction vested in him by law. We can, therefore, interfere with his order under Section 622 of the Code, and for the reasons already stated I am of opinion that he ought not to have summarily dismissed the suit under Section 102 of the Code as he has done. I would accordingly direct that it ha restored to the file for disposal according to law on condition that Mr. D.V. Narasing Rao, Sir v. Bhashyam Aiyangars junior in the case, do pay the costs of the day on which the suit was dismissed for default, he havi