VENKATACHALIAH, J. ( 1 ) THIS appeal preferred by the defendant against the judgment and decree passed in RA. 239 of 1971 dated 11-4-1974 by the Principal civil Judge, Belgaum, setting aside the judgment and decree in OS. 148 of 1967 passed by the Principal Munsiff, Athani, has been referred to a division Bench by Venkataswami, J, as in his opinion his decision in raghu Rao v. Krishna Bhatta, relying on which the Court below passed the impugned order of remand, requires reconsideration. ( 2 ) THE relevant facts leading to this appeal are the following : the respondent herein instituted the suit OS. 148 of 1967 in the Court of the Principal Munsiff at Athani, for a declaration of his title and for an injunction. The said suit stood posted to 1-4-1971 for the examination of the plaintiff. The order-sheet of the trial Court of the said date shows that the case was adjourned to 1-6-1971 for the recording of the evidence on the side of the plaintiff. The order-sheet of 1-4-1971 reads :" 1-4-71: Sri NBS, Pleader for plaintiff. Sri PGM, Pleader for defendant. Sri Miraj states that since yesterday he is running temparature and requests for time. So finally call on 1-6-71. Both parties must be ready on that day. No adjournment shall be given at any cost. " ( 3 ) ON 1-6-1971, however, plaintiff was not present in Court. His learned Counsel sought leave of the Court to retire from, the case for want of instructions. No specific order appears to have been made by the trial Court permitting the Counsel to retire. However, it is seen from the note in the deposition sheet of DW. 1 wherein it is recorded that the said witness was not cross-examined by the Counsel for the plaintiff as the latter retired for want of instructions. As the plaintiff was absent in court on 1-6-1971 despite a specific direction in this behalf, the trial court felt compelled to close the side of the plaintiff and 'to proceed to record the evidence on the side of the defendants and to dispose of the suit on the material availabe on record. As the plaintiff was absent in court on 1-6-1971 despite a specific direction in this behalf, the trial court felt compelled to close the side of the plaintiff and 'to proceed to record the evidence on the side of the defendants and to dispose of the suit on the material availabe on record. ( 4 ) IN the appeal preferred against the said judgment and decree non-suiting the plaintiff, it was, inter alia, urged that the trial Court was in error in proceeding to dispose of the suit in the manner in which it did, as, according to the plaintiff, the trial Court was, when the Counsel for plaintiff sought to retire from the case, bound to adjourn the case and issue notice to the plaintiff personally. Reliance was placed in support of this proposition on the decision of Venkataswami, J in the said Raghu rao's case (l) in which this Lordship extending the principles enunciated in the context of an appeal in an earlier reported decision of Govinda bhat, J (as he then was), in Sri Krishna Venkatesh Pai v. Devappa ayyu Naik , to proceedings in a suit held that the principle that where a Counsel has been engaged for a party, wanted to report no instructions, it is his duty to inform his client of his intention to retire from the case, and that if he had not so done, the Court could not proceed to dismiss the suit but should protect the interests of the litigant by issuing a notice to the party. The correctness of this view extending enunciation made in the context of an appeal by Govinda Bhat, J (as he then was), to proceedings on the original side having been doubted by Venkataswami, J, this reference has come up before us. ( 5 ) THE relevant observations made in Sri Krishna Venkatesh Pai v. Devappa Ayyu Naik , 1967 (1) Myslj. 236. in this behalf are as follows :" By accepting the vakalat of the appellant to conduct the appeal sri Kama,th agreed to argue the appeal. If for non-payment of fee settled or any other reason, Sri Kamath wanted to report no instructions, it was his duty to notify the appellant first and then seek leave of the Court to retire from the case. If for non-payment of fee settled or any other reason, Sri Kamath wanted to report no instructions, it was his duty to notify the appellant first and then seek leave of the Court to retire from the case. It was the duty of the Court to protect the interests of the appellant either by issuing notice to him or directing Sri Kamath to file proof of having issued notice of his intention not to proceed with the case. In my opinion, the Court below in dismissing the appeal on the memo of Sri Kamath,, failed to protect the interest of the appellant, when by the acceptance of vakalat, the Pleader had undertaken to conduct the appeal. "the requirement that before granting permission to a Counsel to retire from the case, the Court should be satisfied 'that the Counsel has notified his intention in this behalf to his client is a salutary principle and should be held to be of general application. This principle is only a corrollary of the principle that when a party seeks to terminate the engagement of his counsel, and seeks leave of the Court in this behalf, the counsel should have notice of the matter. If either the party or the counsel, as the case may be, seeks to terminate the engagement without having notified the other, it would be the duty of the Court to insist upon evidence of the communication of this intention in this behalf toithe party concerned before granting leave under' provisions of Rule 4 (2) of order III, CPC. Till such leave is granted the engagement is deemed to be subsisting, subject, of course, to other events envisaged in the said rule. However the proposition that in such a case "the Court cannot dismiss the appeal merely on the ground of the Counsel reporting no instruction", must be understood to be confined to the context of the proceedings in an appeal. In an appeal the party who engages the services of a, Counsel has, generally, nothing to do personally in the matter. 'appeals are generally disposed of on the basis of the arguments of Counsel. In such cases the party may not choose to be present in Court, and is entitled to expect his Counsel to proceed with the case and protect the interests of the client. 'appeals are generally disposed of on the basis of the arguments of Counsel. In such cases the party may not choose to be present in Court, and is entitled to expect his Counsel to proceed with the case and protect the interests of the client. In these circumstances , if the Court grants leave to the Counsel to retire from the case without reference to the party or without 'the Court being satisfied that the Counsel had earlier notified his client of his intention to discontinue, and proceeds to dismiss the appeal immediately following such retirement of Counsel, serious injustice and hardship would be caused to the party. This part of the observations in sri Krishna Venkatesh Pai's case (2) are clearly relateable to and justified in the context of what is understood to be the general procedure in the hearing and disposal of appeals. The principle would also obviously govern the stages of proceedings in a suit which are analogous to the proceedings in an appeal, for instance, where the matter is posted only for the addressing of arguments by Counsel ( 6 ) IN Raghu Rao's case (1) Venkataswami, J, was of the view that no distinction could be made as to the applicability of this principle in the matter of original suits as well, as, in his Lordship's view, the requirement of the interest of the litigant is common to both types of matters and it is this consideration that weighed predominently with the Court while enunciating the extension of the principle. His Lordship proceeded lay down that even in original proceedings where the Counsel seek leave of the Court to retire, the Court must follow one of the two alternatives, namely, either refuse to grant permission to retire and proceed with the case; or adjourn the case to enable the Counsel to notify his client of his intention to retire, from the case. His Lordship also contemplated a third alternative that where both the Counsel and the party were present in Court, the party might be presumed to have the notice were present in Court, the party might be presumed to have notice of the intention of the Counsel to retire from the case. ( 7 ) IN our opinion, the principles laid down in Raghu Rao's case (l) a,re salutary and necessary to promote the ends of justice. ( 7 ) IN our opinion, the principles laid down in Raghu Rao's case (l) a,re salutary and necessary to promote the ends of justice. However, this cannot be understood to operate as an unqualified limitation on the powers of the Court in all circumstances and without reference to and independently of the conduct of the parties. Rule 2 of Order XVII, CPC contemplates the manner in which the Court has to proceed if the parties or any of them fail to appear on any day to which the hearing of the suit its adjourned. Rule 3 of Order XVII CPC envisages that 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 for the further progress of the suit, for which time has been so allowed, the Court may, notwithstanding such default, proceed to decide the suit forth-with. In a given situation, owing to the failure of the party, it would become open to the Court to proceed under rule 2 or Rule 3, as the case may be, of Order XVII CPC. That discretion of the Court cannot be circumscribed by a mere signification at that stage of the intention of the Counsel to retire from the case without having earlier notified his client in this behalf. The Court must test whether the situation entailing and justifying the attraction and invocation of Rule 2 or Rule 3 of Or. XVII CPC is on account of the failure or default of the party concerned or is purely attributable to an unforeseen situation of the Counsel signifying his intention to terminate the engagement. Where it appears to the Court that the latter event can reasonably be considered to be merely designed to avert the obvious consequences of the failure or default of the party, the Court would be perfectly justified in proceeding with the matter either under Rule 2 or Rule 3, as the case may be, of Order XVII CPC, inasmuch as, in such a case, the retirement of the Counsel would not be the immediate and direct cause of the court proceeding to dispose of the suit either under Rule 2 or Rule 3 of order XVII CPC. To hold otherwise would be to allow the discretion of the Court to be bogged down by mere incantation by the Counsel of his intention to retire. The immediate cause for that would be the failure or default of the party, the signification of the intention of the Counsel to retire being only incidental and consequential. To say that even in such a case, the Court is bound to adjourn the master, and to direct a notice either from the Counsel or from ithe Court to go to the party-in-default, may lead to a possibility of abuse of the process of Court. Understood in this context, the principles laid down by Venkataswami, J in Raghu rao's case (1) cannot be said to have been either too widely stated or inapplicable in the context of the proceedings in a suit. ( 8 ) THE facts of the present case clearly indicate that the presence of ithe respondent in the Court on 1-6-1971 was absolutely necessary for the further proceedings. By an express order of the Court to which we have adverted earlier, the trial Court had directed the plaintiff to be present on 1-6-1971. He was absent despite this mandate. Signification of the Counsel to terminate the engagement was only consequential. Indeed, no leave had been granted to the Counsel. The trial Court, in these circumstances, was clearly entitled to proceed with the matter tinder Rule 2 or Rule 3 of Order XVII of the CPC. The plaintiff cannot invoke the principles enunciated in Raghu Rao's case (1) and claim that notwithstanding his absence, the case should have been adjourned and a notice should have been caused to be sent to him in this behalf. The view ol the appellate Court, therefore, that the trial Court should not have disposed of the suit but ehould have caused notice to be issued to the plaintiff to engage another Counsel is not supportable. The order of remand requires to be and is accordingly set aside. ( 9 ) IN this appeal before the Court below, the plaintiff, apart from challenging the decree on the ground that an adjournment was mandatory, has also challenged the judgment and decree on other grounds. He has also contended that his absence in the Court on 1-6-1971 was for sufficient cause. The Court below has not disposed of these contentions. ( 9 ) IN this appeal before the Court below, the plaintiff, apart from challenging the decree on the ground that an adjournment was mandatory, has also challenged the judgment and decree on other grounds. He has also contended that his absence in the Court on 1-6-1971 was for sufficient cause. The Court below has not disposed of these contentions. The appellate Court will now proceed to consider the other contentions urged in the appeal and dispose of the appeal in accordance with law and in the light of 'the observations made above. ( 10 ) THIS appeal is accordingly allowed and the order of remand made by the Principal Civil Judge, Belgaum, in RA. 239 of 1971 dated 11-4-1974 is set aside and the ;matter is remitted to the appellate Court for a fresh disposal in accordance with law. ( 11 ) IN the circumstances the parties will bear their own costs in this appeal. --- *** --- .