NALINI JANARDHANAN Vs. ELAMANA CHINNAMMU

JUDGEMENT

(1.) The important question which arises in this Writ Petition is whether "decision" of the suit envisaged by Clause (a) of Rule 3 of Order 17 C.P.C. shall be a decision on the merits of the claims and contentions in the suit. As a corollary, the question whether a decision taken purportedly under Rule 3(a) which does not deal with the merits of the claims and contentions can be set aside under Order 9 also arises. The question whether appearance of a party through a counsel who is not prepared to conduct the case but only seeks an adjournment will amount to appearance of the party for the purpose of Rule 3(a) also arises.

(2.) Plaintiff is the petitioner. On her demise during the pendency of the Writ Petition, her legal heirs have been impleaded as additional petitioners. The suit was for prohibitory injunction against trespass into the suit properties. After trial, the suit was dismissed. But the court of first appeal decreed the suit. On Second Appeal to this Court, the suit was remanded with a direction to identify the suit properties with the help of an advocate commissioner and to dispose of the suit within six months. The commissioner filed report and plan. The petitioner filed I.A. No. 410 of 2004 for setting aside that report and plan. The I.A. was dismissed after examining the commissioner. The case stood posted for trial to 1.3.2004. The plaintiff was not present but only sought for an adjournment on the ground that the order on the application to set aside the commissioner's report and plan is proposed to be challenged. The adjournment application was dismissed and the suit was also dismissed. The plaintiff filed I.A. No. 1179 of 2004 under Order 9 Rule 9 C.P.C. for restoration of the suit which was dismissed by the trial court by Ext.P2 order, holding that the non-appearance of the petitioner on 1.3.2004 was to avoid a decision in the suit and that sufficient cause was not made out for the non-appearance. It was also noticed in Ext.P2 order that a time-limit had been set by this Court which had to be complied with. Against Ext.P2 the petitioner preferred C.M.A. No. 73 of 2004 before the District Court and the learned District Judge would paraphrase Order 17 Rule 3 C.P.C. and hold that all the conditions necessary for attracting Order 17 Rule 3 (a) stood satisfied in the case and would accordingly hold that the application for restoration under Order 9 Rule 9 was not maintainable and that the remedy of the petitioner was to seek a review of the judgment dismissing the suit or to prefer a regular appeal as provided under the Code. Noticing that the judgment dismissing the suit does not decide the merits of the claim or the contentions, the learned District Judge would observe that such a dismissal of the suit is also 'decision' of the suit at least for the purposes of Rule 3(a) of Order XVII. Despite the above finding, the learned Judge went on to consider the merits of the application and would find that sufficient cause had not been made out and further that genuine grievances of the petitioner, if any, against the order dismissing the commission application could be raised as grounds in the appeal to be filed by her against the decree dismissing the suit. To hold that the application under Order 9 Rule 9 is not maintainable, the learned District Judge relied mainly on the judgment of this Court in Sankara Pillai v. Sankaran,1987 2 KerLT 382 and that of the Full Bench of the Allahabad High Court in M.S. Khalsa v. Chiranji Lal, 1976 AIR(All) 290. According to the learned District Judge, appearance through a counsel who files an unsuccessful application for adjournment should be deemed as appearance of the party for the purpose of the rule. The judgments in Divakara Panicker v. Pathumma and others,1990 1 KerLJ 787, Sankara Pillai v. Balakrishnan Nair,1988 1 KerLT 339 and in Janakiramaiah Chetty v. Partharasarathi, 2003 2 KerLT 384 were all distinguished by the learned District Judge on facts.

(3.) I have heard the submissions of Sri. Jawahar Jose, Advocate on behalf of the petitioner and those of Sri. R. Bindu Sasthamangalam, Advocate on behalf of respondents 1 and 4. I have also heard the submissions of Sri. C.M. Suresh Babu, Standing Counsel on behalf of the 3rd respondent-Calicut Corporation.