K V PUNNA RAO Vs. K LAKSHMAIAH

JUDGEMENT

(1.) The question that arises for consideration in this appeal is, whether an application under Order IX, Rule 9 of the Code of Civil Procedure is maintainable

(2.) The facts in brief are as follows:Suit was filed by the plaintiff as an indigent person under Order XXXIII, Rule 1 of the Code of Civil Procedure. The petitioner was examined and time was granted. Thereafter, the petitioner did not appear with the result the respondent was examined. Ultimately, the OP., was disposed of on merits on June 9, 1977 holding that the petitioner suppressed the fact that he is possssed of means. However, time was granted for payment of the court fee. The petitioner did not pay the court fee. Subsequently, the proceedings terminated for non-payment of the court fee. An application has been filed under Order IX. Rule 9 of the Code of Civil Procedure to set aside the order dt. June 9, 1977 contending that Order XVII, Rule 3 of the Code of Civil Procedure does not apply, on the other hand, Order XVII, Rule 2, CPC., applies to the facts of the case. As such the lower court ought to have disposed of the case only under Order XVII, Rule 2, CPC and that the dismissal of the OP was bad. The lower court did not accept this position and dismissed the said application. Hence, this appeal.

(3.) In this appeal, it is contended by Sri T. Bali Reddy, learned counsel for the appellant that, when the appellant was not present, the only coarse left open to the court below was to terminate the proceedings by making an order under Order XVII Rule 2 CPC, and the order cannot be construed to be one made under Order XVII, Rule 3 CPC. In support thereof he relied upon a Bench decision of this Court in Gurnatha Rao vs Ramamurthy. It is no doubt true the position of law preceding the amendment brought in the year 1976 holds the field in view of the Bench decision. But an Explanation to Order XVII, Rule 2 CPC., was engrafted in the year 1976 which reads thus :