MUHAMMED KUNJU Vs. SARAMMA

JUDGEMENT

(1.) This appeal was referred to a Division Bench for decision by one of us as the question of law raised in the appeal was thought to be of some importance.

(2.) The plaintiffs are the appellants. The Trial Court dismissed the plaintiffs suit on 7-6-1958. The judgment is in the following terms: Suit is dismissed. On the day when the suit was dismissed the case stood posted for the examination of the parties and for hearing. Counsel for the plaintiffs applied for an adjournment on that day on the ground that the plaintiffs karyasthan was laid up and that the plaintiffs wanted time for his examination. The court dismissed the application and passed the judgment in terms referred to above. It was against this that the appeal was preferred before the lower appellate court, and that court found that the appeal was not maintainable as the decision of the Trial Court was not on the merits, but a disposal for default under O.9 R.8 of the Code of Civil Procedure.

(3.) The main submission on behalf of the appellants was that the court below went wrong in holding that the decision of the Trial Court was a disposal for default, and that no appeal lay from that decision. In other words the submission was that the decision of the Trial Court was on the merits under O.17 R.3 and that the only remedy of the aggrieved party was to file an appeal. O.17 R.3 is in the following terms: