SANKAKA PILLAI Vs. SANKARAN

JUDGEMENT

(1.) The appellant is the plaintiff in a suit for partition. The appeal arises from AS No. 368 of 1978 dismissing the plaintiff's appeal from the decree of the Trial Court which reads as follows:

(2.) The facts relevant to this appeal are: The plaintiff's suit stood posted for trial to 5-4-1978 after a series of adjournments. On that day the plaintiff's counsel presented to the court IA No. 1323 of 1976 praying for adjournment accompanied by an affidavit of the plaintiff. That affidavit was sworn by the plaintiff in the office of the advocate. He stated several reasons for adjournment, one of them being that he proposed to seek permission of the court for amendment of the plaint. On the basis of that affidavit, counsel requested the court to adjourn the case to a future date. That request was refused and the aforesaid "judgment" was made by the court followed by a "decree". Against that judgment and decree, the plaintiff filed an appeal before the lower appellate court contending that the decree was appealable by reason of O.17 R.3 of the CPC.

(3.) The lower appellate court stated that only counsel was present in the Trial Court on 5-4-1978 because, apart from the affidavit of the plaintiff sworn in counsel's office on the date of the trial, there was no evidence that the plaintiff himself was personally present in court. On that assumption the court concluded that R.3 of O.17 of the CPC did not apply because the party was not present. The court consequently held chat it was R.2 of O.17 of the CPC that applied and, therefore, the "judgment" was not appealable.