MUHAMMED Vs. NARAYANI

JUDGEMENT

(1.) THE question that arises in this appeal is whether an appeal lies against an order dismissing a suit for default.

(2.) APPELLANT is the plaintiff in O. S. 106/80 before Sub Court, ottapalam. After framing issues the suit was posted for trial to 20th of August 1984. An application for adjournment was presented on behalf of plaintiff. The court rejected that application. Plaintiffs counsel was not ready to proceed with the trial. Plaintiff was also absent on the date of hearing. In the circumstances the court dismissed the suit. A decree is also seen to have been drawn. Plaintiff has presented this appeal against that judgment and decree, the grievance of the appellant is that the rejection of the request for adjournment is illegal and improper. The maintainability of the appeal is questioned by learned counsel for the respondents.

(3.) O. XVII regulates the procedure at the adjourned hearing. The court may if sufficient cause is shown at any stage of the suit grant time to the parties and may from time to time adjourn the hearing of the suit. R. 2 of Order XVII provides that where on any day to which the hearing of the suit is adjourned the parties or any of item fail to appear the court shall proceed to dispose of the suit in 6"he of the modes directed in that behalf by Order IX or make such other order as it thinks fit. This rule contains an explanation introduced by the amendment of 1976. The explanation says that where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the court may, in its discretion, proceed with the case as if such party were present. The procedure to be followed by the court where a party fails to produce his evidence or to cause the attendance of his witnesses. or to perform any other act necessary to the further progress of the suit, for which time has been granted is provided in R. 3 of O. XVII. It is stipulated that the court may proceed to decide the suit forthwith notwithstanding such default if the parties are present. On the other hand, if the parties are or any of the absent the court may proceed under r. 2% On a reading of Rules 2 and 3 of O. XVII it is seen that Rule 2 applies when one or both of the parties do not appear on the day fixed for the adjourned hearing and in such a case the court has to proceed in accordance with the provisions in Order IX. The court is competent to make such order as it thinks fit. But in view of the specific provision contained in R. 2 the court has to dispose of the suit in one or other of the modes directed in that behalf by O. IX of the Code. R. 3 also applies to the adjourned hearing but if the parties are or any of them is absent the court has to proceed under R. 2.