LONAPPAN Vs. PAVUNNI

JUDGEMENT

(1.) This appeal by the plaintiff arises from the ex parte judgment in O. S. No. 4 of 1978. C. M. A. No. 203 of 1982 is the plaintiff's appeal against the order in I. A. No. 616 of 1982 in O. S. No. 4 of 1978 dismissing the application for restoration of the suit which was dismissed for default. The main contention of the appellant is that in the circumstances of this case the suit ought not to have been dismissed for default, but it ought to have been disposed of on the merits.

(2.) The suit which was instituted in 1978 to restrain the defendants from passing off their merchandise as the goods manufactured by the plaintiff has had a slow progress on account of a series of adjournments sought and obtained by the plaintiff and also an earlier dismissal for default and the subsequent restoration. The case finally stood posted to 20-3-1982 for the defendants' arguments. By then evidence had been fully recorded on both sides and the plaintiff's counsel had argued the case for four days. The defendants' counsel too had already argued for two days. He was expected to continue his arguments on 20-3-1982 at the end of which the plaintiff's counsel could reply if he so chose. However, on that day counsel appeared for the plaintiff not to argue his case, but to represent to the court that counsel who had earlier argued the case on behalf of the plaintiff had relinquished vakalath and that the present counsel was not instructed to argue the case, but only to request for an adjournment. The adjournment was refused and the court passed an ex parte decree dismissing the suit. That is the decree which is under challenge in this appeal.

(3.) Counsel for the appellant Shri. T. S. Venkateswara Iyer, relying on the principle stated in Subramania Othuvar v. Manusamiya Pillai, AIR 1916 Mad. 897 (1); Chamak Lal v. Mauji, AIR 1929 Patna 248; Trappa v. Sidava, AIR 1931 Bom. 111; Ninnappa Vtrtappa Yelloor v. Goudappa. (1905) VII Bom. Law Reporter 261; State (Delhi Admn.) v. V. C. Shukla AIR 1980 SC 1382 , 1400; and, Goswami Krishna Murailal Sharma v. Dhan Prakash, 1981 (4) SCC 574 , submits that even before an Explanation was added to O.17 R.2, the law was understood in a long line of decisions, notwithstanding certain other decisions taking a divergent view, that in a case where the whole or a substantial portion of the evidence of a party had been already recorded, the absence of that party on the day to which the case was adjourned did not confer a discretion upon the court to dismiss the suit under O.9 R.8. That this is the correct position, counsel says, is now clarified by the Explanation.