NARAYAN Vs. NINGAPPA

JUDGEMENT

(1.) In view of the further arguments addressed by both the sides before signing the order dated 2-4-1981 is recalled and the following order is passed. The petitioner is the planitiff and the respondents are the defendants. The suit was posted for evidence on 25-11-1975 and on that day, the Court was otherwise engaged; therefore, the suit came to be adjourned by the Court to 27th January 1976 but not at the instance of any of the parties. On 27-1-1976, the plaintiff and the defendants and their counsel were present but the plaintiff did not adduce evidence nor did he enter the witness box. The Court dismissed the suit for non-prosecution with costs. Thereafter, the petitioner filed an application under 0. IX, R. 9 of the Civil P. C. for restoration of the suit. The trial court has held that the order in question dismissing the suit for non-prosecution falls within the scope of R. 3 of 0. 17 of the Code, therefore, it is appealable and accordingly it has rejected the application as not maintainable. In the appeal, the learned Additional District Judge, has concurred with the view expressed by the trial Court and has dismissed the appeal.

(2.) It was contended on behalf of the petitioner that the Courts below were not correct in holding that the order dismissing the suit for non-prosecution was the one passed under R. 3 of 0. 17 of the Civil P. C. inasmuch as on 25-11-1975the suit came to be adjourned not at the instance of the plaintiff but it was only at the instance of the Court as the Court was otherwise engaged. Thus, it was submitted that the posting of the suit on 27th Jan. 1976 was not at the instance of the plaintiff for adducing evidence; therefore, the provisions contained in R. 3 of 0. 17 of the Code were not applicable. It was further submitted that in the instant case R. 2 of 0. 17 also was not applicable, hence the order passed was without jurisdiction.

(3.) On the contrary, Sri Annadanayya Puranik, learned counsel for the respondents, submitted that as the piaintiff was required to adduce evidence and the suit was posted for evidence on 27-i-1976 and admittedly he failed to adduce the evidence on that day, the provisions of 0. 17, R. 3 of the Civil P. C. were attracted even though the suit was dismissed for non-prosecution, but under the circumstances of the case such an order operated as a decree, hence the proper remedy was to file an appeal and not the application under 0. IX R. 9 of the Civil P. C. It was also submitted that R. 2 of 0. 17 was not applicable to the facts of the present case.