DIVAKARA PANICKER Vs. PATHUMMA

JUDGEMENT

(1.) Second appeal is by the plaintiff. Suit is for recovery of property on title. The Commissioner deputed to ascertain the properties could not do so with the help of the surveyor for want of necessary survey records. Appellant failed to supply the records as ordered. Commission was recalled and the case posted in the special list for trial to 1-10-1980. Appellant did not appear, but his Advocate moved an application to remove the case from the list. When it was rejected, he withdrew and said that the appellant is not prepared to proceed further. Suit was dismissed for default and not on merits. Appeal by the plaintiff was also dismissed as not maintainable.

(2.) The crucial question is whether the decision is for default of non appearance under R.2 or on the merits under R.3 of Order XVII. Disposal under R.2 could only be on any one of the methods under O.9. If that is an ex parte decree against the defendant, it is appealable and a petition under O.9 R.13 also will lie. But, if it is a dismissal of the suit for non appearance of the plaintiff alone, the decision is only under O.9 R.8. It is not an appealable decree or order. The only remedy is a petition under O.9 R.9. Even the provision under Order XLIII Rule (I)(h) for appeal against an order when the decision is under Order XVI R.20 has been deleted by the amendment of 1976. But if the decision is under Order XVII R.3, it is an appealable decree.

(3.) O.9 is concerned with appearance of parties and consequences of non appearance, while Order XVII deals with the next stage of adjournments. Appearance could be in person or by pleader. If the parties or any of them do not appear on the adjourned date, the court can decide the suit on any one of the available methods provided in O.9. It will only be a decision for default. The only exception provided by the amendment of 1976 is the one under the new explanation to R.2, which enables the Court to render a decision on the merits also in such cases under R.3 provided the evidence or a substantial portion of the evidence of the non appearing party has already been recorded. Under the old Code, a decision on the merits under R.3 was possible irrespective of the presence or absence of the parties, according to the discretion of court, provided the adjournment was at the instance of the defaulting party, who failed to produce his evidence, or cause attendance of his witnesses, or perform any other act necessary to the further progress of the case, for which time was granted. Now, under the newly added Clause (a), over and above the said conditions, presence of parties is also necessary. So also, under the new Clause (b), if the parties are, or any of them is, absent, the decision could be only under R.2. Of course, these two clauses are subject to the explanation to R.2. In order to attract R.3, a general adjournment or posting of the case is not sufficient. A specific posting by an adjournment at the instance of the defaulting party for any one of the purposes mentioned in the first part of R.3 and failure are necessary. A direction to comply with any such condition and its failure at some earlier point of time will not be sufficient. The posting on the particular day must be for that purpose.