A plaintiff's appearance through counsel negates claims of dismissal for non-appearance under procedural rules.

1.This Notice of Motion is taken out by the Plaintiffs for setting aside an order passed by this Court purporting to dismiss the suit for non - prosecution.

2. On 29th November, 2001 this suit appeared on the daily board for framing Issues. The Advocate for the Plaintiffs appeared before the Court. He, however, stated that he is not ready to go on with the matter. The Court did not find any valid reason for his saying so. The learned single Judge therefore dismissed the suit for non - prosecution.

3. The plaintiffs applied for restoration of the suit under O.9, R.9 of the Code of Civil Procedure , 1908, which reads as under : -
9.Decree against plaintiff by default bars fresh suit. -
(1) Where a suit is wholly or partly dismissed under R.8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non - appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.
4. In the alternative, the learned counsel for the plaintiffs submits that he is entitled to reinstatement of the suit under Order IX, R.4 of the Code of Civil Procedure , which reads as under : -

4. Plaintiff may bring fresh suit or Court may restore suit to file. - Where a suit is dismissed under R.2 or R.3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for such failure as is referred to in R.2, or for his non - appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit.

5. The only question before me is whether in the circumstances of the case the Plaintiffs are entitled to move an application for setting aside the order for dismissal under Order IX, R.9 of the Code of Civil Procedure , 1908. I find that the answer must be in the negative.

6. Mr. Ardeshir, learned Counsel for the Defendants strongly opposes the Notice of Motion under Order IX, R.9 in view of what appears to be a settled position of law. In brief the 'contention of the learned counsel for the defendants is that the learned single Judge did not dismiss the suit for non - appearance of the plaintiffs. Admittedly the Plaintiffs appeared through his Advocate. The Advocate was however not ready to go on with the matter. Therefore, according to the learned counsel Order IX R.9 of the Code of Civil Procedure is not attracted because a Plaintiff is entitled to apply for an order to set aside a dismissal upon satisfying the Court that there was sufficient cause for his non - appearance. This being a case where the plaintiffs appeared, Order IX, R.9 has no application. I find that the learned counsel for the Defendants has rightly pointed out the position in law settled by this Court in the year 1928 and followed thereafter. Other Courts seem to have taken the same view. Mr. Ardeshir, learned counsel for the Defendants has rightly relied on a decision of this Court in Ramchandra Pandurang Naik v. Madhav Purushottam Naik , reported in 1892 ILR Bom (16) 23. In that case the Advocate had appeared and asked for an adjournment. The Court had, however, dismissed the suit. It rejected the argument that the application for adjournment cannot be treated as retire