YELLAPPA Vs. MURIGEPPA

JUDGEMENT

(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 :

(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.