MADANLAL Vs. JAI NARAIN

JUDGEMENT

(1.) THIS is a revision petition under section 25 of the Small Cause Courts Act.

(2.) THE plaintiff -applicant filed a suit against the defendant -non -applicant for recovery of a sum of Rs. 149.91 P. on the basis of a document executed by the defendant on 18 -6 -63. On 7 -10 -67 the defendant filed his written statement denying the claim and the case was adjourned to 8 -11 -67 for evidence at the request of the plaintiff subject to payment of Rs. 4 as costs. On 8 -11 -67 the plaintiff was absent. His counsel Shri N. K. Jain appeared and requested for time till about 1 P. M. The case was again taken up at 1.15 P. M. when the plaintiff and his counsel both were absent. The Court, thereupon, dismissed the suit on the ground that the plaintiff had failed to adduce evidence though the case was adjourned at his request for that purpose. A decree was drawn up on the same day. On 11 -1 -67 the plaintiff filed an application under Order 9 Rule 9 C.P.C. for setting aside the dismissal on the ground that the plaintiff's counsel had by mistake noted a wrong date i. e. 28 -11 -67' instead of 8 -11 -67' and that is why the plaintiff could not appear on 8 -11 -67. This application was rejected by the trial Court on the ground that it was not maintainable because the suit was dismissed, under Order 17 Rule 3 C.P.C. and not under Order 9 Rule 9 C.P.C. Being aggrieved thereby the plaintiff -applicant has filed this, revision petition.

(3.) I shall first deal with the decision relied upon by the Learned Counsel for the applicant. In Bhivraj v. Janardan 30 NLR 94: AIR 1933 Nag 370, Niyogi AIC (as he then was) held that Rule 3 of Order 17 pre -supposes the appearance of the party at whose instance the case was adjourned and that the proper way of interpreting Rules 2 and 3 of Order 17 is to treat the dismissal of the suit has having been made under Rule 2 in cases where on account of the non -appearance of the party the explanation for failure to perform acts referred to in Rule 3 was due but was not given on account of his absence. In Dayalji Wasanji and another v. Kedarnath Onkarmal and Company AIR 1953 Nag 222, it was held that where it is not clear whether a particular case is under Rule 3 or 2 of Order 17 the Court must lean in favour of holding that the case falls under the latter provision and not the farmer.