ABDULLA HAJI Vs. MAMMUNHI BARIKAT

JUDGEMENT

(1.) The plaintiff is the revision petitioner. The suit was for recovery of possession with damages for use and occupation. Two suits were filed by the plaintiff for the same relief and they were O.S. Nos. 27 and 32 of 1957. The title deeds relied on by the plaintiff are the same in both the suits and they were filed in O.S. 32/57. Both the suits were stayed under Act 1/57 and the stay was vacated only after the coming into force of Act 1/64. The nature of the suit being the same, the plaintiff applied for joint trial; but the defendants objected and the objection was upheld and O.S. 27/57 was posted for production of document to 29 6 1964. As the prayer for joint trial was not granted the plaintiff had to obtain attested copies of the documents from the other suit and produce them in O.S. 27 of 1957. Certified copies could not be obtained in time and so, on 29-6-1964 the plaintiff moved for an adjournment. That application was allowed and the case was posted to 9-7-1964. On that date also he was not able to get the attested copies of documents and so he was compelled to apply for another adjournment; but that application was rejected. Immediately, the counsel stated that he had no instructions and the suit was accordingly dismissed. On 25-7-1964 the plaintiff applied to set aside the order of dismissal and restore the suit to file. By that time copies of documents were also available. The learned Munsiff has held that the dismissal of the suit is one falling under O.17 R.3 CPC. and so the remedy of the aggrieved party is by way of an appeal only, and accordingly the petition was dismissed. The order has been confirmed in C.M. Appeal by the Subordinate Judge of Kasargode.

(2.) The only question, therefore, that arises for consideration is whether the disposal of the suit on 9-7-1964 is a disposal coming under O.17 R.2 or R.3 CPC. O.17 R. 3 CPC. reads:-

(3.) In the present case, the dismissal was for default and that is patent from the order of the lower court itself. The learned Munsiff observed:-