THANKAPPAN Vs. ACHUTHAN

JUDGEMENT

(1.) A suit was filed for declaration of title and possession and consequential injunction. The suit was posted for trial on 14.11.1984. The plaintiff was absent. But the suit was dismissed considering each and every issue on merit as is seen from the judgment of the Trial Court. The plaintiff filed a petition under O.9 R.9 as I.A. No. 1590/84. That was dismissed with the following order:

(2.) It is contended by the appellant that when the plaintiff was absent, the Trial Court ought to have acted in terms of O.17 R.2 and should have disposed of the suit in one of the modes directed in that behalf by O.9 or make such other order as it thinks fit. Admittedly this was a case where no evidence had been adduced. Therefore, the explanation under R.2 of O.17 did not have any application at all. At the maximum, it could have been stated that the proceedings had reached the stage as envisaged under R.8 where the plaintiff failed to produce evidence, even though the case had been posted for trial in the special list on 14.11.1984. Even in such case, as per clause.(b) thereof, the Court had to proceed in terms of R.2 of O.17, as the plaintiff was absent. In terms of R.2, the Trial Court ought to have acted only as provided in that behalf by O.9, O.9 provides the procedure where any of the parties is absent on the date of posting. In R.8 thereof it is provided thus:

(3.) It is contended by the respondents that the dismissal of the suit, though on merit, in the absence of the plaintiff, shall be construed as a dismissal under O.9 R.8 read with O.17 R.2. It was in such circumstances he filed a petition under O.9 R.9 which also was dismissed and the judgment was confirmed. The petition under O.9 R.9 is a separate and independent proceedings different from the suit as held in the decision reported in Lakshmikutty Panickathy v. Bhargavi ( 1987 (2) KLT 562 ). So he cannot now reagitate that matter in a second Appeal. He ought to have filed C.M.A. against the said order dismissing the petition under O.9 R.9. It is also contended on the basis of the decision in M/s. Mangilal Rungta, Calcutta v. Manganese Ore (India) Ltd. (AIR 1987 Bom. 87), that such aspect cannot be reagitated. Thus having allowed the case under O.9 R.9 to become final, the appellant/plaintiff cannot now raise a question of law as raised in the Second Appeal. Therefore, the question of law has to be answered against the appellant and the appeal has to be dismissed.