DEVASSIA Vs. KURIAN

JUDGEMENT

(1.) Heard both sides. The second defendant has filed this revision petition against the lower courts order restoring the suit to the file on the application of the plaintiff. The point raised in the revision petition is that the disposal of the suit was not for default but was on the merits as contemplated by O.17 R.3 and as such the restoration application was incompetent. Plaintiff has been repeatedly applying for time to adduce evidence in the case and finally the case stood posted on 30.7.1123 at his instance. On that date also he applied for time. The lower court rejected that application and then took up the case for disposal and dismissed it on the ground that the plaintiff had adduced no evidence to substantiate his claim in the suit. On behalf of the plaintiff it is argued that even though the form of the judgment might indicate that the disposal of the case was on the merits, it was really a dismissal for default. Such a contention could have been urged prior to the amendment of R.3 of O.17 C.P.C. (Travancore). R.3 as amended in the year 1120 is to the effect that when 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 comply with any previous order or to perform any other act necessary to the further progress of the suit for which time has been allowed, the court may, not withstanding such default and whether such party is present or not proceed to decide the suit forthwith. The situation contemplated by this rule were brought about in the present case on 30.7.1123. Plaintiff to whom time had been granted for producing his evidence failed to produce such evidence and hence inspite of his absence, the court could proceed to dispose of the case on its merits. It is also seen that the court actually exercised such a jurisdiction in disposing of the suit. The mere fact that it has not recorded separate findings on each of the issues in the case cannot mean that the disposal was for default. The failure to separately deal with the issues may be defect or irregularity in writing the judgment. Inspite of such irregularity or defect the disposal of the case was one on the merits. The suit was dismissed on the ground that the plaintiff had no evidence to support his claim in the suit. Such being the nature of the disposal of the suit, plaintiffs application for restoration of the suit was unsustainable. If he is aggrieved by the dismissal of the suit, his remedy would be by way of appeal against the decree.