NAMBURU BASAVAYYA Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The short question that arises for determination in the Civil Revision Petition is whether the Court below was right in holding that the dismissal of the suit as under Order 17, rule 3, Civil Procedure Code.

(2.) In order to appreciate the contention of Sri G. Venktarama Sastri, the learned advocate for the petitioner, that the dismissal falls under Order 17, rule 2, it is necessary to set out a few relevant facts. On 12th March, 1955, the suit was adjourned to 14th March, 1955, on condition that the plaintiff paid costs of Rs. 10 as a condition precedent. On 14th March, 1955, costs were not paid. When the suit was called, the plaintiff's advocate reported no instructions and the plaintiff was called and he was also absent. On these facts, the Subordinate Judge came to the conclusion that as the plaintiff failed to pay the costs on the adjourned date, the dismissal should be regarded as one or non-prosecution under Order 17, rule 3, Civil Procedure Code. I am inclined to take the view that the Subordinate Judge is wrong.

(3.) It is no doubt true, as held by Venkataramana Rao, J., in Chandra Virayya and others v. Kilaru Nagayya, (1936) M.W.N. 1230 , that if the plaintiff was present on 14th March, 1955 and failed to pay the costs as directed by the Court, the dismissal would fall under Order 17, rule 3. But as the plaintiff's advocate reported no instructions and the plaintiff was absent, the provisions of Order 17, rule 2, would apply. In Pichamma v. Sreeramulu, (1917) 34 M.L.J. 24 : I.L.R. 41 Mad. 286 (F.B.) , a Full Bench of the Madras High Court held, at page 295, as follows: