SANKARA PILLAI Vs. BALAKRISHNAN NAIR

JUDGEMENT

(1.) Appellant herein filed the suit against the respondents. The suit was dismissed on 07/04/1982. Appellant filed IA 465 of 1982 to restore the suit under O.9 R.9 C.P.C. The court below dismissed the application holding that the dismissal of the suit was not under O.9 R.8 C.P.C. and hence it could not be restored under O.9 R.9 C.P.C. This judgment is now challenged.

(2.) It appears the suit OS 77/80 concerned in this case and another suit. OS 17/82, were tried jointly and purportedly disposed of on merits. The decree and judgment in OS 17/82 have been confirmed in AS No. 65/82 of the District Court, Thodupuzha.

(3.) Evidence was being recorded in OS 77/80. The case was posted for trial to 01/04/1982. on that day plaintiff was not ready. Adjournment application filed on behalf of the plaintiff was dismissed. Plaintiff did not adduce evidence on that day. Evidence on behalf of the defendants was adduced on that day and succeeding days. Arguments were heard on 5-4-1982 and suit dismissed on 07/04/1982. There is no doubt that the dismissal purports to be on merits. Learned counsel for the appellant would contend that even though the dismissal purported to be on merits, in law it has to be treated as dismissal under O.17 R.2 and can be set aside under O.9 R.9 C.P C. Learned counsel would further contend that the dismissal was not under O.17 R.3 C.P.C.