VARGHESE Vs. KESAVAN

JUDGEMENT

(1.) This is a petition to revise an order of the District Munsiff of Chengannur allowing a plaintiffs application to restore to file his suit dismissed for default. The suit was one for declaration of the plaintiffs rights in respect of an item of immovable property. After the examination of the plaintiff the case stood posted for evidence for the first time to 11-8-1958 The examination of the party was completed on 1-7-1958 and it was from that date that the case was adjourned to 11-8-1958. This adjournment was made not at the request of any party but suo motu by the court to suit its own convenience. On 11-8-1958 the plaintiff applied for time to adduce evidence. Dismissing this application the court disposed of the suit, writing a judgment which in form purports to be one on the merits. When the plaintiff applied for restoring the suit to file on the ground that it was dismissed for default defendant opposed the application contending in the first instance that the disposal was one on the merits and so the court had no jurisdiction to restore the suit to file and in the second instance that there was no sufficient ground for condoning the plaintiffs default on 11-8-1958. The lower court repelled both these contentions and allowed the plaintiffs application for restoration. Hence this revision petition by the defendant.

(2.) The contention before me of the revision petitioners counsel was that this was a case to which O.17, R.3 of the Code of Civil Procedure would apply. I am unable to accept that contention, for, as stated in AIR Commentaries on the Code of Civil Procedure, (1957 Edition, Vol. II, page 2643) O.17, R.3 does not apply unless adjournment was granted to a party at his instance to do one or the other of the three things mentioned in the rule, namely, to produce his evidence or to cause the attendance of witness or to perform any other act necessary for the progress of the case and unless default had been committed by such party in doing the act for which time was granted. The adjournment to 11-8-1958 was not in pursuance of any application made by the plaintiff or his counsel and admittedly neither the plaintiff nor his counsel was present in court on 11 -8-1958. Therefore, the disposal on 11-8-1958 though in form purporting to be one on the merits has really to be taken as one for default. The judgment of 11-8-1958 also shows that the learned Munsiff has not considered the real questions arising for decision in the suit. I therefore hold that the District Munsiff had jurisdiction to restore the suit to file.

(3.) Coming to the second question, namely, whether there are sufficient grounds for condoning the default on 11-8-1958, I must confess that it is not free from difficulties. Absolutely no ground other than the fact that the posting for 11-8-1958 was the posting for evidence was mentioned in the application for restoration. The adjournment application of 11-8-1958 has not been sent up by the lower court, evidently under the present rules which leave the option of the lower court to decide what records should be sent up. This is a case in which the lower court should have sent up the application of 11-8-1958 in order to enable this court to decide whether the application on that day was made on justifiable grounds. The statement before me by the respondents learned counsel that the posting for 11-8-1958 was the first posting for evidence was not seriously challenged by the revision petitioners counsel. The learned Munsiff who decided the case in the first instance has deemed it fit to restore the suit to file evidently because he knew the circumstances in which he hurriedly disposed of the suit on