The main legal point established in the judgment is that the appearance of a pairokar and filing of an application on behalf of the party cannot be treated as the appearance of their authorized agent, thus rendering the restoration application maintainable.

( 1 ) THIS writ petition is directed against the order dated 23. 7. 1981 passed by respondent No. 1 rejecting the application of the petitioners for restoration of the suit and the order of the appellate court, respondent No. 2 dismissing the appeal against the aforesaid order.

( 2 ) THE petitioners filed Suit No. 174 of 1978 for recovery of arrears of rent, ejectment and damages against the defendant-respondent Nos. 3 and 4 with the allegations that they had let out a plot of land measuring 12x 20 to one Bhagat Ram on a monthly rent of Rs. 250. They gave a notice to the tenant and to his partner Gyan Chand demanding arrears of rent and terminating his tenancy. Defendant Bhagat Ram contested the suit and asserted that the rate of rent was Rs. 50 per month and not Rs. 250 per month as claimed by the plaintiff-petitioners.

( 3 ) THE trial court had fixed 7. 8. 1980 for final hearing. The case was adjourned for 27. 8. 1980. On the said date, the petitioners did not attend the Court and their counsel also did not appear in the court. One Laxmi Narain, filed application in the Court with the allegations that the counsel was out of station and could not appear in the Court. On the same day, the Court rejected the adjournment application with the reasons that the ground mentioned in the application was insufficient. Thereafter he proceeded with the suit and passed the following order :

"no evidence adduced by the parties. The suit is dismissed with costs for want of evidence. Sd. 27. 8. 1980"

( 4 ) THE petitioners filed an application for restoration of the suit under Order IX, Rule 9. C. P. C. with the allegations that they could not appear in the Court as they had to attend the marriage of one of the petitioners daughter. They had, however, sent their pairokar Lakshmi Narain to contact their counsel and Instruct him to get the case adjourned. The counsel was out of station and in that circumstances. Lakshmi Narain moved an application before the Court for adjournment but that was rejected.

( 5 ) IT was stated that the petitioners could not appear in the case in facts and circumstances mentioned in the application. The trial court rejected the application on 23. 7. 1981 holding that as the suit was decided on merits under Order XVII, Rule 3, C. P. C. the application was not maintainable under Order IX. Rule 9. C. P. C. The petitioners filed Appeal No. 124 of 1981. Respondent No. 2 has dismissed the appeal affirming the view taken by the trial court. These orders have been challenged in the present writ petition.

( 6 ) I have heard Sri A. D. Saunders, learned counsel for the petitioners.

( 7 ) THE core question is as to whether the application under Order IX. Rule 9. C. P. C. is maintainable on the Facts and circumstances of the present case. Under the Explanation added to by Allahabad High Court, no party shall be deemed to have failed to appear if he is either present or represented in Court by agent or pleader, though engaged only for the purpose of making an application. The meaning of the word appearing has to be considered keeping in view of the provisions of Order III. Rule 1. C. P. C. which reads as under :

"1. Appearances, etc. , may be in person, by recognized agent or by pleader.--Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader on his behalf. "

( 8 ) THE application for adjournment was filed by one Lakshmi Narain. He was only a pairokar, instructed by the petitioners to approach their counsel to get the case adjourned. He contacted the counsel for the petitioners but he was out of station. Lakshmi Narain, in these circumstances, filed an application before the Court for adjournment on the ground that the petitioners counsel is out of station. Admittedly, he was