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of dismissal of the suit, get the life on restoration of the suit and those applications are required to be
decided in accordance with the law after hearing both the parties. Thus, in an appeal, where the
respondent had died and before his legal representatives could be taken on record the appeal was
dismissed for default, the appellant could submit restoration application by impleading the legal
representatives of the deceased respondent though they were not party in the appeal. While deciding the
restoration application, the court cannot decide the application which is pending in the appeal, for the
reason that on the restoration of the appeal, the appeal shall stand restored to the stage where the
application for substitution of legal representatives was pending.3

2. Remedies in case of dismissal under rule 8. A plaintiff whose suit is dismissed under r 8 for default of
appearance on the day fixed for the hearing cannot appeal from the order of dismissal, as such an order is
not a decree (s 2 (2)(b)) or a judgment so as to attract cl 15 of the Letters Patent,4 but he may

(i) apply for a review of the order under O 47, r 1,5 though the High Court of Bombay6 has held that
since the decision of the Privy Council in Chajju Ram v. Neki,7 a plaintiff whose suit has been
dismissed under r 8 has no remedy by way of review. The High Court of Calcutta was also
inclined to the view taken by the Bombay High Court.8 The High Court of Assam has observed
that it cannot be laid down generally that there can be no review of an order under this rule.9 Or he
may
(ii) apply under this rule for an order to set aside the order of dismissal.

He is entitled to apply for a review without a previous application to set aside the dismissal under this
rule.10 The period of limitation for an application for a review of the order is 10 days from the date of the
order in the case of an order made by the Provincial Court of Small Causes, 20 days from the date of the
order in the case of an order made by any of the Chartered High Courts in the exercise of its original
jurisdiction, and 90 days from the date of the order in other cases.11 Under the Limitation Act 1963, the
period is uniformly 30 days under Art. 124. The period of limitation for an application under this section
is 30 days from the date of the dismissal of the suit.12

Where the earlier suit was dismissed for default of the plaintiff under O 9, r 8 of the Code and the said
dismissal attained finality as the plaintiff did not apply to set aside the dismissal, it was held by a Division
Bench of the Madhya Pradesh High Court that subsequent suit by the plaintiff based on the same cause of
act ion was barred under this rule.13

As to the question of determing the similarity of cause of action in the earlier and the latter suits, the
Division Bench quoted with approval passages from two decisions of the Privy Council wherein tests to
be applied in this regard had been stated. These Privy Council decisions had been referred to by the
Supreme Court in Suraj Ratan Thirani v. Azamabad Tea Co. Ltd.,14 wherein it has been observed as
follows:

In considering whether the cause of act ion in the subsequent is the same or not, as the cause of action in
the previous suit, the test to be applied is are the causes of act ion in the two suits in substance-not
technically-indentical?

The second one is Soorjamonee Dasee v. Suddanund,15 which lays down the approach to the question as
follows:

Their Lordships are of opinion that the term cause of action is to be construed with reference to the
substance than to the form of act ion.
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In a case of motor accident compensation claim, the tribunal granted interim compensation, but refused to
grant further compensation and dismissed the claim on merits. The claimant, instead of challenging the
judgment and award in appeal, filed an application for restoration of the claims petition under O 9, r 9. It
was held that the application for restoration was not maintainable.16

But the second remedy, that is, the remedy provided by this rule, can only be availed of by a plaintiff who
does not appear at the hearing and the suit is dismissed for default of appearance under r 8 above. The
remedy given by this rule is not open to a plaintiff whose suit is dismissed on any ground other than
default of appearance. Hence, if a plaintiffs suit is dismissed on his failure to establish his case by reason
of non-attendance of his witnesses17 or for want of evidence,18 the dismissal is not one under r 8, and he
cannot, therefore, avail himself of the remedy provided by this rule.

There is a conflict of decisions whether if a plaintiff does not apply under this rule within the 30 days
allowed by law, he is entitled to apply for a review under O 47, r 1, after the expiration of that period. The
Patna High Court has held,19 following an earlier decision of the Calcutta High Court,20 that he is not; on
the other hand, the Calcutta High Court has held in a later case that he is.21 The ground of the Patna
decision is that to allow a review in such a case would be an evasion of the rule of limitation.22

The first remedy of review is open to any plaintiff whose suit has been dismissed, whatever the ground of
dismissal may be, whether it is dismissed for default of appearance at the hearing or on the merits after a
hearing.

3. Appearance. A plaintiff or a defendant will be deemed to have appeared on the day fixed for the
hearing of the suit, if he appears

(i) in person, or
(ii) by a pleader either himself duly instructed and able to answer all material questions relating to the
suit or accompanied by some person able to answer such question (O 5, r 1, sub-r (2)), or by a
solicitor in a suit on the original side.23

Appearance means appearance in person or through pleader prepared to conduct the case.24

(a) Appearance of a Party in Person. The mere presence of a party in the court at the hearing is
sufficient to constitute appearance within the meaning of this Order. It does not matter for what
purpose he appears or what action he takes on the appearance. A plaintiff appearing and applying
for an adjournment on the ground that his witnesses are not present will be deemed to have
appeared. If the application is refused, and the suit is dismissed owing to his inability to establish
his case in the absence of witnesses, the dismissal is not one under r 8 for the plaintiff did appear,
and he cannot, therefore, avail himself of the provisions of this rule.25 Similarly, a defendant
appearing and applying for an adjournment on the ground that he had no time to prepare his case,
will be deemed to have appeared. If the application is refused, and a decree is passed against him
owing to his unpreparedness to defend the suit, the decree is not ex parte under r 6, for he did
appear, and he cannot, therefore, avail himself of the provisions of r 13 below.26
(b) Appearance of a Party by Pleader. Different considerations arise when a party is represented by a
pleader. Appearance by a pleader within the meaning of this Order does not, like appearance by a
party in person, mean mere presence in the 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 (O 5, r 1). Hence, a party cannot be said to appear by a