The main legal principle established in the judgment is the interpretation of appearance by a pleader and the circumstances leading to non-appearance, influencing the application of Order 17, Rule 2 for restoration of the suit.

Madhavan Nair, J.

1. This is an appeal against the order of the Subordinate Judge of Trichinopolyi refusing to restore to file O.S. 87 of 1920 which was dismissed by his predecessor on 17th September 1923. The suit was for partition and recovery of one-third share of the plaint properties. The plaintiff based his claim on a "will" purporting to have been executed by the deceased father of himself and defendants 1 and 2. The contesting defendants raised the plea that the "will" was not a true one binding on them. After the framing of the issues the case was posted for final hearing, but it had to be adjourned from time to time as the "will" and the connected records had been filed in a criminal Court in some proceedings between the parties. The case was last adjourned for the purpose of securing the "will" to 4th September 1923. On 3rd September 1923, the "will" was received by the Court. On the 4th, as the parties were not ready with their evidence, and at their joint request, the case was adjourned to 17th September 1923. On 17th September 1923 an application was made for an adjournment by the plaintiffs vakil; but the Subordinate Judge dismissed the application. When the adjournment was refused the plaintiffs vakil does not seem to have said that he had no instructions but he took no further part in the case. The plaintiff himself was present in Court. He also asked for an adjournment and when that was refused he refused to go on with the case. The Subordinate Judge then wrote a judgment and dismissed the plaintiffs suit on 17th September 1923. As regards the plaintiffs request to adjourn the case, this is what appears in the B diary:

Plaintiff in person wants time again. Time refused. Plaintiff refuses to go on with the case. Suit is dismissed without costs.

2. The plaintiff afterwards filed an application for restoration. The Subordinate Judge who dismissed the suit sent notice to the defendants. His successor heard the application and declined to restore the suit; the present appeal is against his order.

3. It is argued before us by the respondents that the disposal of the suit by the Subordinate Judge was under Order 17, Rule 3, Civil P.C., that the plaintiffs remedy, if any, is only by way of review or appeal and that, in the circumstances, no petition could be maintained under Order 9, Rule 9, Civil P.C., for restoration. On behalf of the petitioner it is contended that the suit was disposed of under Order 17, Rule 2 and that Order 9, Rule 9, Civil P.C., isapplicable.

4. The first question for consideration is whether, when the suit was dismissed by the Subordinate Judge, it was disposed of by him under Order 17, Rule 3, or under O.17, Rule 2, Civil P.C. In Pichamma V. Seeramulu [1918] 41 Mad. 286, it was held that where, at the close of the plaintiffs case, an adjournment was granted to the defendant to enable him to produce his evidence and he failed to appear at the adjourned hearing, and the Court proceeded to pass a decree against him, the case came within Order 17, Rule 2 and the decree could be set aside under Order 9, Rule 13. The learned Judges, Sadasiva Ayyar and Kumaraswami Sastriar, JJ. (Wallis, J. dissenting) point out that:

Rules 2 and 3 of O.17, Civil P.C., are mutually exclusive. Rule 2 applies to all cases of absence of parties, whether time was granted or not, to do any of the acts mentioned in Rule 3 of the order, while Rule 3 applies only to cases where the parties are present and commit default of the kind mentioned in the rule.

5. According to this decision the questions whether Order 17, Rule 2 or Order 17, Rule 3, Civil P.C., will apply to the present case will depend upon the question whether the plaintiff failed to appear on 17th September 1923 within the meaning of Order 17, Rule 2 read with Order 9 Rule 9, Civil P.C. To recapitulate the necessary facts for the decision of this question: on the adjourned date the plaintiffs vakil asks for a further adjournment. It is refused; when refused he