Though the case squarely falls in Order 17 Rule 2, useful reference may also be made to the provisions of Order 17 Rule 3. Order 17 Rule 3 reads thus-
"Order 17 Rule 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 witness, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may notwithstanding such default,-
(a) if the parties are present, proceed to decide the suit forthwith; or
(b) if the parties are, or any of them is absent, proceed under Rule 2.
10. The rule thus provides that if the parties are present, then Rule 3 would be applicable, and in the event the parties are absent then one needs to revert to Rule 2. Since in the present case, the plaintiffs were not present, Rule 2 would apply. It is ofcourse now a settled law that the appearance of the counsel is treated as appearance of the party, who he is representing.
11. This brings us to the question whether in the instant case, when the junior Counsel is present and appears before the Court without instructions and merely for the purpose of taking an adjournment, can it be treated as non appearance within the meaning of Order 17 Rule 2. This Court had the occasion to deal with a similar issue in the case of Prashant Vagaskar v. MCGM reported in AIR 2002 Bombay 120. In that case the Learned Single Judge of this Court (Daga J.) observed in para 21 of his Judgment as under:
"21.... In other words, appearance/presence should be for the purpose of taking part in the proceeding and that it includes preparedness to cite evidence and/or to produce documents or to take any other step for disposal of the suit/case as may be considered necessary. Therefore, if a party to a suit for some reason or other is precluded from being ready to take part in the prosecution of the suit but somehow manages to come with a view that the case should be got adjourned for some other day, his appearance in such a circumstances will not amount to an appearance as contemplated under Order 17, Rule 2 of Civil Procedure Code. In this view of the matter, the appearance of the plaintiff on 30-8-2001 was no appearance for the purpose of the suit."
12. The Learned Single Judge has in the above judgment relied upon the full bench decision of the Calcutta High Court in the case of Satish Chandra Mukerjee v. Ahara Prasad Mukerejee, (1907) ILR 34 Calcutta 403, wherein it was unanimously held by the 5-Judge bench as under:
"The term "appearance" is nowhere defined in the Code and as pointed out by Benson, J. in Seeley v. Evans, (1838-19 Wendell 459) has several significations the word must always be understood in reference to the particular subject matter to which it relates and the purpose or end to be answered by the appearance has an important bearing in determining what is sufficient to constitute appearance in a particular case. It seems to me that having regard to the scope of Section 556 of the Civil Procedure Code and the object to be gained by the attendance or appearance of the counsel to make ail (sic an) application for adjournment ought not to be treated as appearance so as to oust the jurisdiction under Section 558 of the Civil Procedure Code, if proper cause is shown. Upon refusal of the application for adjournment, if counsel declines to go on with the case, there is at that time no appearance on behalf of the party. I do not feel much pressed by the reference made to the case in which evidence may have been taken and which has been partially argued."
13. It is noteworthy that the High Court Amendment of Andhra Pradesh adds an Explanation to Order 17 Rule 2 of the Code, to the effect that the mere presence in Court of a party or his counsel not duly instructed shall not be considered to be an appearance of the party within the meaning of this rule.
14. Thus, the presence of a Counsel has to be an effective presence, not mere physical presence. The Counsel should be ready with the matter and be able to assist the Court. The appearance of a Counsel who has instructions only to apply for an adjournment or to have the matter kept back cannot be considered as an appearance at all in the context of Order 17 Rule 2 or Order 9 Rule 8 of Civil Procedure Code. If one peruses the Vakalatnama, it ordinarily mentions the words "act appear and plead" for and on behalf of the party. The appearance of a Counsel who is not able to or unwilling to plead the cause of his client can hardly be termed as an appearance. It may be mentioned that it has become a matter of routine and everyday practice in this Court to let juniors appear and seek adjournments or have the matter kept back and many a times they are not even aware about the subject matter. Their presence cannot be termed as their "appearance" for the purposes of Order 17, Rule 2.
IN THE HIGH COURT OF BOMBAY
Notice of Motion No. 4424 of 2007
Decided On: 25.02.2009
Devidayal Sales Pvt. Ltd. Vs. The State Trading Corporation of India and Ors.
Hon'ble Judges/Coram:
A.A. Sayed, J.
Citation:2009(4) MHLJ 298
