JUDGMENT - NAIK A.B., J.:---The Revision is filed by the original plaintiff challenging the orders passed by the learned 2nd Joint Civil Judge (S.D.) Parbhani and the learned District Judge, Parbhani. The petitioner original plaintiff (hereinafter referred to as the plaintiff) instituted R.C.S. No. 87/81 against the respondent original defendant (hereinafter referred to as the defendant) for relief of declaration and perpetual injunction in respect of three pieces of agricultural land situate at village Digras, Taluka and District Parbhani. The plaintiff during pendency of the suit filed an application for injunction restraining the defendant from interfering in possession of the plaintiff over the suit land. The application for injunction came to be dismissed. The dismissal was challenged in the learned District Judge on 7-7-1984 allowed the appeal and granted injunction. Against the decision of the appeal the plaintiff approached this Court by filing Revision Application under section 115 of the C.P.C. This Court on 27-8-1993 disposed of the Revision Application by issuing direction to the trial Court to dispose of the suit by the end of December 1993 and continued interim relief granted by this Court on 3-8-1984 till the suit is decided. After the order passed by this Court the suit proceeded with. The defendant though appeared did not file written statement and the learned Civil Judge on 14-6-1994 passed an order of no written statement and directed that the suit be proceeded without written statement. The defendant filed an application vide Exh. 54 for setting aside no written statement order. The said application came to be rejected. After 14-6-1994 it appears that the suit was adjourned at the behest of the defendant on the ground that the defendant desires to challenge the order passed by the Court of no written statement but however, it appears that no written statement was filed. The suit was adjourned to 30-6-1994. On 30-6-1994 the suit did not proceed with as the Presiding Officer was not available as he was on training. The Roznama shows that the case is adjourned for evidence. On 7-7-1994 the suit was called out, it appears that plaintiff was absent on that day when the suit was called. His Advocate made an application seeking time to file affidavit as at an earlier occasion the plaintiff was directed to prove his case on affidavit. The Roznama shows that the case is adjourned for evidence. On 7-7-1994 the suit was called out, it appears that plaintiff was absent on that day when the suit was called. His Advocate made an application seeking time to file affidavit as at an earlier occasion the plaintiff was directed to prove his case on affidavit. The learned Judge dismissed the said application for adjournment and dismissed the suit for want of prosecution under Order 17, Rule 3 of the C.P.C. After dismissal of the suit by the above said order, the plaintiff filed application for restoration of suit which was numbered as Misc. Application No. 62/94. On the said application notice was issued to the respondent-defendant. In response to the said notice the defendant appeared and filed his say at Exh. 15 and denied all the contentions. He stated in the application that there were rain and the plaintiff was not feeling well as such he informed his Advocate to take short adjournment for filing affidavit. It is contended that this fact was communicated to Shri Vithalrao for filing the application. The application for adjournment was filed by the Advocate which was rejected and the suit was dismissed in default. Immediately the plaintiff after one hour appeared in the Court, contacted his Advocate and told the Advocate that he was having temperature and he was to go to the doctor. It is stated in the application in pare No. 6 which runs thus: "That as the plaintiff has come today only, restoration petition is filed today. The affidavit of plaintiff would not be drafted during the Court hours, so this restoration petition is presented before the Hon'ble Court after the Court hours." It is further stated that at the time of passing of the order the defendant and his Advocate were not present. Hence, it was prayed to issue notice to the defendant. As stated above the application was objected by the defendant by filing his written statement. It is contended that the application is devoid of merit. It is stated that the case was posted for evidence and not for filing affidavit. It is contended that the medical certificate produced on record is not proper. The plaintiff also has not disclosed the exact nature of illness and the name of the doctor was has given treatment. With these contentions the defendant prayed for dismissal of the application. It is stated that the case was posted for evidence and not for filing affidavit. It is contended that the medical certificate produced on record is not proper. The plaintiff also has not disclosed the exact nature of illness and the name of the doctor was has given treatment. With these contentions the defendant prayed for dismissal of the application. On the basis of the rival contentions raised the learned Civil Judge framed point for his determination. The plaintiff in order to support his contention and to establish about his absence on account of illness has examined himself at Exh. 19 and Vithalrao at Exh. 23 as his witness. The learned Civil Judge after considering the evidence on record has come to the conclusion that no sufficient cause is made out for restoration of the suit and accordingly the Application No. 62/94 came to be rejected. 2. Rejection of the said application by the 2nd Joint Civil Judge (J.D.) Parbhani on 31-3-1995 the plaintiff preferred Misc. Civil Appeal No. 25/95 before the learned District Judge, Parbhani. The learned District Judge after hearing the learned Counsel appearing for the parties raised the point as to whether the appeal is maintainable. The learned District Judge held that the appeal is not maintainable. It was contended before the learned District Judge that the order passed by the learned Civil Judge being appealable order, the appeal is maintainable. It was contended by the learned Counsel for the appellant before the learned District Judge that Order 7, Rule 2 being an exception to Order 8, Rule 9 of the C.P.C and in view of the provisions of Rule 4 of Order 9 the appeal is maintainable under Order 43 of the Code. The learned District Judge negatived this contention and by the order dated 19-4-1997 dismissed the appeal as not maintainable. 3. The orders passed by both the courts below are challenged in this Revision Application by the plaintiff. The learned Counsel Shri Deshmukh, appearing for the plaintiff contended that the dismissal of the suit by the learned trial Judge was under Order 9, Rule 8 of the C.P.C. and for restoration of the said suit an application as contemplated under Rule 9 of Order 9 came to be filed and that application was rejected. The learned Counsel Shri Deshmukh, appearing for the plaintiff contended that the dismissal of the suit by the learned trial Judge was under Order 9, Rule 8 of the C.P.C. and for restoration of the said suit an application as contemplated under Rule 9 of Order 9 came to be filed and that application was rejected. Therefore, under the provisions of Order 43, Rule 1(c) of the C.P.C. the appeal was maintainable before the learned District Judge and the learned District Judge should have considered the appeal on merit. Shri Deshmukh, therefore, contended that while passing order the learned trial Judge in turn stated that the suit is dismissed under Order 17, Rule 3 of the Code but in fact, the case is governed by Order 9, Rule 8 of the C.P.C. Therefore, the dismissal was under Rule 8 of Order 9. Shri Deshmukh, contended that the suit was fixed on 7-7-1994 for the evidence of the plaintiff i.e. by filing affidavits and the Advocate for the plaintiff was present when the suit was called and as the affidavit was not ready the suit came to be dismissed. Therefore, he contended that on the date when the suit was fixed the parties were present (through their Advocate). He contended that the recourse taken by the learned Judge to Rule 3 of Order 17 was uncalled for as the party was present before him when the suit was called. The learned Counsel further submitted that the trial Court should have considered the fact that suit was dismissed in default and on very day the application for restoration of the suit was filed. The proper reasons were assigned for absence of the plaintiff on that day in the application itself, wherein it is stated that the plaintiff could not reach the Court because of the heavy rains and illness of the plaintiff, there was sufficient reasons for the plaintiff for non remaining present on that day. When the plaintiff got the information about the dismissal of the suit, he rushed to the Court and contacted his Advocate, but after Court hours the application for restoration came to be filed. Therefore, the learned Counsel contended that the application for setting aside dismissal was filed on the same day, the learned Judge should not have taken the harsh step to reject the application. Therefore, the learned Counsel contended that the application for setting aside dismissal was filed on the same day, the learned Judge should not have taken the harsh step to reject the application. He therefore, submitted that this is a fit case where this Court should interfere in the order passed by the Court. He submitted that the suit relates to valuable immovable properly, the dismissal of the suit may come in his way in future, therefore, the defendant can be compensated by awarding costs by the plaintiff. 4. Per contra, Shri Mandlik, submitted that the dismissal of the suit was justified looking into the conduct of the plaintiff. He submitted that this Court in Revision Application No. 345/84 has directed the learned Civil Judge to dispose of the suit by end of December 1983 and continued the interim relief granted by this Court in the Civil Revision Application. The plaintiff has taken disadvantage of the liberty granted by this Court and dragged the proceedings only with intention to continue the interim relief granted by this Court. Shri Mandlik, submitted that on the date when the suit was dismissed the defendant was absent therefore, this dismissal cannot be considered to be a dismissal under Rule 8 of Order 9. Therefore, he submitted that the dismissal of the suit by the Court is not under Rule 9 as contended by the learned Advocate for the plaintiff. The learned Counsel further submitted that even on merit the learned trial Judge has considered cause for restoration of the suit and on appreciation of evidence of the plaintiff and his witness the learned Judge recorded finding that no sufficient grounds are made out for justifying the absence of the plaintiff on 7-7-1994. He therefore, submitted that the order being just and proper, this Court under the revisional jurisdiction may not interfere in the order. 5. In order to appreciate the rival contentions I have to find out whether the dismissal of the suit by the learned trial Judge is under Order 17, Rule 3 or Order 9, Rule 3 or Rule 8. It is not disputed by the defendant that no written statement was filed inspite of ample opportunity given to him, ultimately the learned trial Court passed an order of 'no written statement' and directed that the suit to proceed without written statement. It is not disputed by the defendant that no written statement was filed inspite of ample opportunity given to him, ultimately the learned trial Court passed an order of 'no written statement' and directed that the suit to proceed without written statement. As there was no written statement the learned trial Judge directed the plaintiff to prove his case on affidavit. On the adjourned date i.e. 7-7-1994 neither the plaintiff nor the defendant were present. Only the Advocate of the plaintiff was present, who sought an adjournment expressing his inability to file the affidavit. In such situation the only way left to the Court as indicated under Rule 3 of Order 17 to be adopted, it will be appropriate at this stage to refer Order 17, Rules 2 and 3. "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 IX or make such other as it thinks fit. (Explanation where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present) "Where the evidence, or a substantial portion of the evidence, of any party has already been recorded, and such party fails to appear on such day, the Court may in its discretion proceed with the case as if such party were present, and may dispose of it on the merits. Explanation.---No party shall be deemed to have failed to appear if he is either present or is represented in Court by an agent or pleader, though engaged only for the purpose of making an application." 3. Court may proceed notwithstanding either party fails to produce evidence, etc. Explanation.---No party shall be deemed to have failed to appear if he is either present or is represented in Court by an agent or pleader, though engaged only for the purpose of making an application." 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 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)." (underline by me) As per Rule 3 of Order 17 where any party to a suit to whom time has been granted, failed to produce his evidence or to perform any other act necessary to further progress of the suit, the Court notwithstanding the fact of said default, either proceed to decide the suit forthwith if the parties are present and if the parties or any one of them is absent to proceed under Rule 2. As per this Rule if the party fails to appear on the date fixed, the Court may proceed to dispose of the suit in one of the modes as directed in that behalf by Order 9. Order 9 deals with the appearance of the parties and consequent off non-appearance. Rule 1 mandates the party to appear on the date fixed in summons for defendant to appear and answer. Rule 2 enjoins upon the Court to dismiss the suit if the summons are not served. Then comes Rule 3 which permits the Court to permit to dismiss the suit when neither party appears when the suit was called out. Rule 6 deals with the procedure when only plaintiff appears. Rule 8 provides for the contingency where the defendant only appears. As per Rule 8 where the defendant appears plaintiff does not appear when the suit is called for hearing. The Court shall dismiss the suit in unless defendant admits entire or part of the claim. Rule 9 permits the plaintiff to file an application for setting aside dismissal. Rule 8 provides for the contingency where the defendant only appears. As per Rule 8 where the defendant appears plaintiff does not appear when the suit is called for hearing. The Court shall dismiss the suit in unless defendant admits entire or part of the claim. Rule 9 permits the plaintiff to file an application for setting aside dismissal. Rule 9 also provides that if the suit is dismissed under Rule 8, the plaintiff is precluded from bringing the fresh suit. Considering the provisions of Orders 9 and 17, in my judgment the contention raised by Shri Deshmukh, that Order 17, there is no provision for dismissal of the suit is proper. Order 17 only enables the Court to follow procedure as contemplated under Rule 9. Therefore in my judgment the observation of learned District Judge and for that purpose the trial Court that the suit is dismissed under Order 17 Rule 3 is not legal and sound. 6. Coming to the debated question, "whether the dismissal of the suit is under Order 9, Rule 8' will have to be considered in the light of the facts of this case and the statutory provisions. As per Order 9, Rule 8 the Court has to dismiss the suit in case the plaintiff does not appear and defendant appears when the suit is called on for hearing. It is not disputed before me that on 7-7-1994 the suit was fixed for hearing that is for filing affidavit of the plaintiff i.e. production of evidence. It is also accepted that in the suit no evidence was recorded either in part or full previously and therefore, explanation to Rule 2, Order 17 is not attracted. The plaintiff was directed to file affidavit as evidence but the plaintiff failed to produce the evidence by way of affidavit. Admittedly, on 7-7-94 neither the plaintiff nor the defendant or his Counsel were present, therefore, Clause (a) of Rule 3 of Rule 17 is not attracted, so far as Clause (b) is concerned, I have to consider the merit and validity of the contention of Shri Deshmukh, that the learned Advocate for the petitioner he stated on 7-7-94 the plaintiff's Advocate was present as such the presence of the plaintiff through his Advocate has to be considered as presence of plaintiff. As such on that day the learned Judge should have decided the suit on merit on the available material. The contention no doubt sound logical but it has to be construed in the light of the provisions of Code and the facts of this case. The submission of the Counsel that the learned trial Judge should have decided the suit on merit on available material has no legal and factual basis as there was no material (evidence) produced by either parties. It is accepted by both the Counsel that no evidence was produced in the suit, hence the question of deciding the suit on merit, presuming the presence of the Advocate of the plaintiff does not arise at all. Admittedly, the suit was fixed for evidence of the plaintiff i.e. by way of affidavit. As the plaintiff was absent when the suit was called out for hearing, the suit could not be proceeded even if the Advocate of the plaintiff was present without the evidence or record. Hence, on facts the submission of the learned Counsel has to be rejected. Next limb of the submission that presence of Advocate of the plaintiff is presence of the plaintiff whether can be accepted has to be considered whether appearance of the Advocate is the appearance of the parties as contemplated under Order 17, Rules 2 and 3 and Order 9, Rule 8 of the C.P.C. In my judgment the presence of the Advocates for the parties on the date fixed, is not the presence of the party as envisaged under Rules. Mere presence of the Advocate representing the plaintiff on 7-7-94 cannot be considered and equated with the presence of the plaintiff. Comparing Order 9, Rule 3 and Order 9, Rule 8 the presence of the Advocate can not be equated with the presence of the parties on the date fixed by Court in the suit. The view which I am taking is supported by the judgment of Division Bench of this Court in case of (Fertilisers and Chemicals Travancore Ltd. v. Rajkumar Limited)1, reported in 1970(72) Bom.L.R. 271, this Court has an occasion to consider the situation when on the day fixed the Advocate was present who was not in a position to answer the suit or the queries from the Court. The Division Bench has held that mere presence of the Advocate in the Court is not the presence of the party. 7. The facts in that case are to be noted in somewhat detail. Suit No. 11/1966 was filed on December 18, 1966 in the Admiralty and Vice-Admiralty Jurisdiction and/or Ordinary Original Civil Jurisdiction of the High Court by Messrs. Fertilisers and Chemicals Travancore Ltd. Concord of India Ltd. was plaintiff No. 2. They filed the suit for recovery of damages against defendant as the defendant No. 2 owns a Ship S.S.K.R. Avinash. The suit was for recovery of damages of Rs. 33,145-53. After the suit summons the defendant appeared through their Advocate and filed their written statement. Neither the plaintiff nor the defendant had filed any affidavit of documents till September, 1969 on which day, the suits were placed alongwith other admiralty suits pending on the Original Side of the High Court on the warned list of admiralty. On September 9, 1969 two suits alongwith some other suits were placed on daily board before the Court. Even on that day, the attorneys and Advocates appearing for the parties had agreed amongst themselves that all the suits should be got adjourned by consent. These suits were called out at the close of the day and on the application of the parties, Mr. Justice Mody (as then he was) adjourned the same by consent. However, when Mr. Keshavdas Dalpatrai, Advocate for the defendants, applied for adjournment of the other two suits and tried to mention them at the time when Mr. Justice Mody was rising on September 9, 1969 at 4-45 p.m. he could not succeed and hence the two suits were carried forward to the daily board on September 10, 11969 before Mr. Justice Mody. When Admiralty Suit No. 11 of 1966 was called out, the plaintiffs were represented by their Counsel Mr. Kotwal, Mr. Keshavdas Dalpatrai who appeared for the defendants. Mr. Kotwal applied for an adjournment for two weeks on the ground that the plaintiffs had not made an affidavit of documents and no inspection had been taken and that his clients were from Kerala. The Advocate for the defendant also applied for adjournment for four weeks on the ground that his clients were from Calcutta. On the motions by the Counsel Mr. The Advocate for the defendant also applied for adjournment for four weeks on the ground that his clients were from Calcutta. On the motions by the Counsel Mr. Justice Mody refusing the adjournment asked by both the Advocates and dismissed the suit in default. 8. On dismissal of the suit the Advocate for the defendant insisted for the costs. The Court rejected the application of costs. On dismissal of the suit the Notice of Motion was taken for restoration of the suit. The notices of motion were placed before Kantawala, J., (as then he was) and on 23rd and 24th October 1969 he dismissed the Notice of Motion that orders passed by Kantawala, J. The order passed on Notice of Motion where subject-matter before the Division Bench. Before the Division Bench it was contended that on the date fixed the parties were present. The parties means the Advocate, therefore, it was contended that the order of dismissal was under Order 9, Rule 8. The Bench by considering several authorities has held that the Counsel which was to answer the question asked by the Court with regard to conduct of the suit if he fails to and was the said question, it has to be held that the party has not appeared in the Court and it is not appearance within the meaning and expression as used in the C.P.C. The Division Bench has followed the full bench judgment of this Court in the case of (Shidramappa Irappa Shivanagi v. Basalingappa Kushappa Kumbhar)2, reported in 1943(45) Bom.L.R. 697 and negatived the contention of the plaintiffs that the plaintiffs were present on that day through their Advocates. It will be appropriate to refer the observation of this Court in Fertilisers and Chemicals Travancore Ltd. (supra). "In view of these contentions before us, the first question that arises in these two appeals is whether the orders passed by Mr. Justice Mody in the two suits on September 10, 1969 were orders under, Order IX, Rule 8 or orders passed in the exercise of inherent jurisdiction under section 151 of the Civil Procedure Code. A perusal of the orders which have been set out above will show that these orders must have been passed under Order IX, Rule 8. In the order passed in Suit No. 11 of 1966 Mr. A perusal of the orders which have been set out above will show that these orders must have been passed under Order IX, Rule 8. In the order passed in Suit No. 11 of 1966 Mr. Justice Mody has in terms found that the Counsel who appeared for the plaintiffs was unable to answer the question put to him and even the names of the witnesses were knot know to him and the plaintiffs were not even contacted to ascertain as to what evidence was to be led. In Suit No. 1 of 1967, whose dismissal followed soon thereafter, a similar note is made in the minutes that the Counsel stated that there were 21 plaintiffs and that his instructing attorneys were unable to contact any of them. In the affidavits filed by Jagdish it is averred that Mr. Kotwal was engaged only for the purpose of adjournment or for consenting to the adjournment asked for by the other parties to the suits. We are told that Mr. Kotwal is a junior Counsel. He is appearing before us and he has made a statement that he was engaged only for the purpose of adjournment and he had no instructions whatsoever from the attorneys with regard to the merits of the suits on September 10, 1969. Jagdish has further stated in his affidavit that the attorney who appeared for the plaintiffs was his father Mr. Gordhandas who was ill and was at Surat Jagdish himself was only an articled clerk. It is not suggested by the defendants that Mr. Gordhandas was present in Bombay between September 6, 1969 and September 10, 1969. In these circumstances, we are emphatically of the opinion that there was no effective appearance whatsoever on behalf of the plaintiffs before Mr. Justice Mody on September 10, 1969. Order IX, Rule 8 provides that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed unless the defendant admits the claim or part thereof. It is common ground that on September 10, 1969 the plaintiffs themselves or their agents were not present in Court. They were only represented by a junior Counsel whose instructions were only to ask for adjournment or to consent to adjournment asked for by the other side. It is common ground that on September 10, 1969 the plaintiffs themselves or their agents were not present in Court. They were only represented by a junior Counsel whose instructions were only to ask for adjournment or to consent to adjournment asked for by the other side. The Counsel was unable to answer any questions asked by the Court with regard to the conduct of the suit. In these circumstances, it is impossible to hold that the plaintiffs in either of the suit had 'appeared' in Court within the meaning of that expression as used in the Civil Procedure Code." The Division Bench further observed: "Apart from that, we find that it is settled law that where parties are not personally present and are represented by pleaders, appearance by a pleader within the meaning of Order IX does not mean mere presence in Court. It means appearance by a pleader "duly instructed and able to answer all material questions relating to the suit" or by a pleader "accompanied by some person able to answer all such questions," as stated in Order V, Rule 1. It is true that Order V, Rule 1(2)(a), (b) and (c) deal with appearance of defendants, but there is weightily authority in support of the proposition that the same Rule would apply even with regard to the appearance by the plaintiffs. The words 'appear' and 'appearance' are used in several places in the Civil Procedure Code including Order III, Rule 1, Order V, Rule 1, Order IX, Rules 1, 6, 8, 9 and 13 and Order XVII, Rule 2 and considering the scheme of these provisions, it is in our opinion, clear that there cannot be any difference between the meaning of appearance by a pleader on behalf of the plaintiff and appearance by pleader on behalf of the defendant. The effective appearance by the pleader is possible only when he is duly instructed to answer all material questions or is accompanied by a person who is able to answer all material questions, whether the pleader is appearing for the plaintiffs or for the defendants. On principle, we find no reason, whatsoever to make a distinction between the appearance of the pleader on behalf of the plaintiff and the appearance by a pleader on behalf of the defendants. On principle, we find no reason, whatsoever to make a distinction between the appearance of the pleader on behalf of the plaintiff and the appearance by a pleader on behalf of the defendants. That is why we find no such distinction being made in any of the cases decided by any Court. On the contrary in Soonderlal v. Goorprasad a Division Bench of this Court held that where a party to a suit is absent and an application for adjournment is made on his behalf by a pleader who has no other instructions than to apply for adjournment and whose functions are at an end when an adjournment is refused, the party was considered not to have appeared within the meaning of section 102 of the Civil Procedure Code of 1882 which was the same as Order IX, Rule 8 of the present Civil Procedure Code. That was a case where there was a suit and a counter suit in the Presidency Small Causes Court at Bombay. On the day on which the suit and the cross suit between the same parties were on the board, the Counsel who was instructed for the defendants in the first suit and for the plaintiffs in the second-was unable to attend and another Counsel held his brief and appeared on his behalf and applied for two months adjournment of both suits. The Counsel who appeared was accompanied by the Munim of the client, but he was unable to state what was the defence, if any to the claim of the plaintiff in the first suit. The adjournment was refused and then he withdrew from the case. Both the suits were then and there disposed of, the claim of the plaintiff in the first suit being decreed, the second suit being dismissed for non-appearance. The Court, regarding the decrees as ex parte decrees, granted a rule for new trial which was made absolute. The Division Bench consisting of Mr. Justice Strachey and Mr. Justice Fulton confirmed the order. Mr. Justice Fulton in his concurrent judgment observed as follows : "Here Mr. Dadysett, though instructed to ask for an adjournment, was not instructed to appear at the hearing; and the recognised agent, though present in the Court, was it appears unwilling to carry on the case. Justice Strachey and Mr. Justice Fulton confirmed the order. Mr. Justice Fulton in his concurrent judgment observed as follows : "Here Mr. Dadysett, though instructed to ask for an adjournment, was not instructed to appear at the hearing; and the recognised agent, though present in the Court, was it appears unwilling to carry on the case. In these circumstances it seems to me that there was no appearance at the hearing of the defendants in Suit No. 13201 or by the plaintiffs in Suit No. 14928." The Division Bench following the Full Bench judgment of Calcutta High Court held thus: "A Full Bench of the Calcutta High Court consisting of six Judges considered the meaning of the word appearance in Satish Chandra Mukerjee v. Adara Prasad Mukerjee, and held that an application by a Counsel or pleader who is instructed only to apply for an adjournment which is refused is not an appearance within the meaning of the Code of Civil Procedure. In his judgment referring the case to the Full Bench, Mr. Justice Mookerjee reviewed the entire range of cases of different High Courts and agreed with the decision of this Court in Bhimacharya Venkatacharya v. Fukirappa Anandappa and observed : "...... In the first of these cases, which was that of an ex parte decree against a defendant, the decision was based on the ground that, under the Code, the summons issued to the defendant calls upon him to appear and answer the claim in person or by a pleader duly instructed and able to answer all material questions relating to the suit; where therefore there is a pleader physically present who is not in a position to conduct the case there is no representation of the defendant so as to give to the suit the character of a defended action. This reasoning appears to me to be sound, but it is not necessary to base it on the terms of the summons, issued to a defendant under the provisions of the Code. The principle applies quite as much to a plaintiff as to a defendant, and when either party to a litigation is represented by a pleader, it is upon the assumption that the pleader is duly instructed and able to answer all material questions relating to the suit. The principle applies quite as much to a plaintiff as to a defendant, and when either party to a litigation is represented by a pleader, it is upon the assumption that the pleader is duly instructed and able to answer all material questions relating to the suit. If, therefore, the mere physical appearance of the pleader was treated as appearance within the meaning of the Code, the policy of the law and the course of justice would both be defeated." With respect, we entirely agree with the view expressed by Mr. Justice Mookerjee which appears to have been approved by a Full Bench decision of this Court in Shidramappa Irappa v. Basalingappa Kushappa where at page 704 it is observed by Divatia, J., speaking for the Court, after quoting the above principle enunciated by Mr. Justice Mookerjee; "....... That view was accepted by the Full Bench. It would apply not only to a pleader who has been engaged only for the purpose of asking an adjournment but also to the pleader who has been engaged from the beginning but who has not received instructions at any particular stage. In the latter case it has been held that when the pleader withdraws from the case on the ground that he had no instructions, the disposal of the suit is under Order XVII, Rule 2 and not under Order XVII, Rule 3." Although the Full Bench was dealing with a case under Order XVII, Rule 2, in our judgment, the principles will apply even to a case falling under Order IX, Rule 8 because Order XVII, Rule 2 itself provides that 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 IX or make such other order as it thinks fit." Following the judgment of this Court I have to reject the contention of Shri Deshmukh, that appearance of the Advocate on 7-7-1994 was appearance of the plaintiff as the Advocate was not in a position to file affidavit as directed. The affidavit (evidence) has to be by the plaintiff, as the Advocate on 7-7-1994 though present was not in a position to answer the query or comply the direction of the Court, hence physical presence of the plaintiff was must on that day. As such presence of the Advocate was immaterial. 9. No doubt that the suit was dismissed on 7-7-94 when admittedly neither the plaintiff nor the defendant were present. The copy of the application filed by the plaintiff for restoration of the suit was produced before me for my perusal. In para 3 of the said application the plaintiff has stated that on 7-7-94 when the suit was called out the defendant was absent. With this undisputed position in my judgment the dismissal of the suit will be under Order 9, Rule 3 of the Code. It is also accepted fact that on dismissal the plaintiff filed an application on the very day and tendering the application before the learned Judge after the Court hours which was not accepted and the said application was tendered on the next day. This is in consonance with Order 9, Rule 4. Order 9, Rule 4 permits the plaintiff to file an application for restoration of the suit which was dismissed in default and if plaintiff satisfied, and shows sufficient cause for his failure for his non-appearance then the Court can make an order setting aside dismissal. As I am of the opinion that the dismissal of the suit was neither under Order 17, Rule (2) nor under Order 9, Rule 8, the dismissal was under Order 9, Rule 3, as both the parties were absent and the Advocate who was present on that day without instructions is not an appearance of the party the dismissal has to be under Order 9, Rule 3 of the Code. Rule 3 presupposes the persons of all the parties and the failure of the party at whose instance and for whose benefit the hearing was adjourned on the previous day to perform the act necessary for the parties of the suit. It is accepted that the plaintiff was to file his affidavit as his evidence and the affidavit was not filed on that day. The case was fixed on adjourned date i.e. 7-7-1994. It is accepted that the plaintiff was to file his affidavit as his evidence and the affidavit was not filed on that day. The case was fixed on adjourned date i.e. 7-7-1994. The case squarely falls under Order 9, Rule 3 which in clear terms states that when neither party appeared when the suit is called out for hearing, the Court may make an order that the suit by dismissed. The distinction between Rule 8 and Rule 9 of Order 9 is that to take recourse of Rule 8. The presence of defendant is necessary, if he is present and plaintiff is absent when the suit is called out, so far as Order 9, Rule 3 is concerned, it deals with a situation where both parties fail to appear when the suit is called out for hearing. Considering the provisions of Order 9, Rule 3 and the facts of the case in my judgment the dismissal of the suit by the learned Judge was under Order 9, Rule 3 and not either under Order 9, Rule 8 or Order 17 as tried to be contended by the plaintiff before the trial Court. 10. The plaintiff has filed an application for restoration of the suit on the assumption that the suit was dismissed under Order 8, Rule 9. The suit was not dismissed under Order 9, Rule 8. The application filed by the plaintiff was rejected by the trial Court and that rejection was challenged by the plaintiff before the District Court by filing an appeal as provided under Order 43, Rule 1(c) of the Code. As I came to the conclusion that the dismissal of the suit is under Order 8, Rule 3 and against the order no appeal lies, only application for restoration under Order 8, Rule 4 or Revision under section 115 of the Code to this Court is maintainable. In the present case plaintiff has filed an application for restoration of the suit which was rejected. I will proceed to consider the merit of the order of rejection of the application. 11. Having held that the dismissal is under Order 9, Rule 3, the plaintiff filed an application for restoration of the suit which was hotly contested by the defendants. I have to find out whether the learned trial Judge was justified in rejecting the said application. 11. Having held that the dismissal is under Order 9, Rule 3, the plaintiff filed an application for restoration of the suit which was hotly contested by the defendants. I have to find out whether the learned trial Judge was justified in rejecting the said application. Before the trial Court the plaintiff examined himself and adduced evidence of one Vithal to support the fact of illness on the date when the suit was dismissed, he (plaintiff) sent a message through Vithal to his Advocate. The learned trial Judge considered the evidence of Vithal and the plaintiff in paras 6, 7 and 8 of his order. On appreciation of evidence, the learned Judge has disbelieved the theory of plaintiff that he was ill on the day, when the suit was placed for hearing. It is really surprising how the plaintiff has taken inconsistent stand. At one stage he stated that due to rain he could not attend the Court and on second breath he states that he was ill and he could not come to the Court. But on the very day he contacted his Advocate at about 3.45 p.m. and his Advocate prepared an application and tendered it to the learned Judge at his residence in the evening on that day. The act of the plaintiff shows that cause shows for non appearance was not genuine cause. The learned trial Judge has appreciated the evidence on record produced by the plaintiff and held that the plaintiff has failed to establish that he was prevented from appearing in the suit on 7-7-1994, the learned Judge has not accepted the theory of illness and held that the plaintiff remained absent on 7-7-1994 and he was not seriously ill and he was present in the Court on that day. This finding is recorded on the basis of the evidence, this revision under section 115 of the Code this Court cannot reappreciate the evidence as an Appellate Court and reconsider evidence of the plaintiff and Vithal afresh. In my judgment the learned Judge was right in rejecting the said application for restoration of the suit. The learned Judge was aware of the fact that this Court has given direction to dispose of the suit by the end of December 1992 but however, the plaintiff dragged the proceedings till 7-7-1994 and on this ground also the learned Judge was justified in dismissing the suit. The learned Judge was aware of the fact that this Court has given direction to dispose of the suit by the end of December 1992 but however, the plaintiff dragged the proceedings till 7-7-1994 and on this ground also the learned Judge was justified in dismissing the suit. There is no substance in the application. Rule discharged. Rule discharged. -----