Appearance in court means being present for the purpose of conducting the case. Mere physical presence or presence of a pleader without instructions to represent the client does not constitute appearance.

PATRA, J.

( 1 ) THIS is an appeal against an order of the Subordinate Judge, Sundergarh, rejecting an application under Order 9, Rule 9, Civil P. C. filed by the appellant to set aside the order dated 23-3-1966 dismissing M. S. No. 38 of 19g4 on the file of that Court for default. That suit was posted for trial to 21-3-1966. Both parties applied for time in the first instance but later on the defendant filed Hazira. The suit was adjourned to the next day for trial. On the 22nd, the plaintiff again applied for time. It being rejected, the plaintiff filed Hazira and the suit was taken up for trial. P. W. 1 was examined and cross-examined in part as there was no time to finish it. The suit was adjourned to the next day for further hearing and the witnesses in attendance were directed to reappear on the next day. Obviously because the next day did not suit the plaintiff, his Advocate filed an application for adjournment till 24-3-1966 but the application was rejected. On the next day, that is, 23-3-1966, defendant No. 1 filed Hazira and the plaintiff's advocate filed an application to adjourn the suit for a month to enable him to get the suit transferred from the file of that Court. That application was rejected and thereafter the plaintiff's advocate reported that he had no further instructions. The learned subordinate Judge then passed an order that "the suit is dismissed with costs for default and further prosecution. "

( 2 ) THE plaintiff thereafter filed an application under Order 9, Rule 9, Civil P. C. for setting aside the order dismissing the suit for default. In that application he had stated the circumstances under which the witness for the plaintiff examined in part on 22-3-1966 was unable to be present in Court on the next day and also the circumstances under which the other witnesses whose evidence was necessary to establish the plaintiff's case could not also attend Court. The defendant-opposite party in that case denied all these allegations and stated that the plaintiff had no reasonable cause to be absent from Court on 23rd. It was also contended that the suit having been disposed of under Order 17, Rule 3, Civil P. C. , Order 9 had no application and that therefore, the application filed by the plaintiff under Order 9, rule 9, Civil P. C. was not maintainable. After examining three witnesses on the petitioner's side and the defendant-opposite party, the learned Subordinate Judge dismissed the application. Hence this appeal by the plaintiff.

( 3 ) AT the outset Mr. S. Mohanti appearing for the respondent urged that the suit haying been disposed of under Order 17, Rule 3, Civil P. C. and having been decided on merits, the only remedy which was available to the plaintiffs was to file an appeal and consequently the application under Order 9, Rule 9, Civil P. C. was not maintainable irrespective of the merits of the petition. This, therefore, leads us to a consideration of the question whether the disposal of the suit was in fact under Rule 3 of Order 17, Civil P. C. as contended by the respondents or whether the disposal was under Rule 2, as contended on the appellant's side. The other questions that arise for determination of the controversy are whether in the circumstances stated above, Rule 3 is at all applicable. Rules 2 and 3 of Order 17, civil P. C. may be quoted.

"2. Procedure if parties fail to appear on day fixed-- Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit 3. Court may proceed notwithstanding either party fails to produce evidence etc--Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding