ADMINISTRATORTHANESAR MUNICIPALITY Vs. GURDAS MAL

JUDGEMENT

(1.) This second appeal is directed against the judgment and decree of the Senior Subordinate Judge, Karnal, exercising enhanced appellate powers, by which the plaintiff-appellant's first appeal was dismissed on the ground of non- maintainability.

(2.) The plaintiff-appellant is the Municipal Committee, Thanesar, which filed a suit for possession of a site against defendant-respondents claiming to be its owner and alleging that it is in illegal occupation of the respondents. The suit was contested by the respondents and on the pleadings of the Parties a number of issues were framed by the trial Court. One witness of the plaintiff was thereafter examined as PW 1. On August 8, 1973, the case was adjourned to 711- 1973 for the appellant's evidence. On the date fixed i.e. 7-11-1973, neither anyone appeared on behalf of the appellant-Municipal Committee nor the remaining evidence was led. The trial Court thereupon closed the appellant's evidence and dismissed the suit on merits holding the issues against the appellant. Although it was observed in the order 6y the trial Court that the appellant's evidence was being closed under O. 17, R. 2 of the Civil p. C. but after appraising the material on the record it was not clarified as to under what provision of law the spit was being dismissed on merits, The appellant-Municipal Committee assuming that the trial Court had dismissed its suit under O. 17, A. 3 of the Civil p. C filed an appeal which was dismissed by the lower appellate Court on arriving at a conclusion that the order of the trial Court fell under O. 17, R. 2 of the Civil P. C. which could not be appealed against. It was observed that the proper remedy was to have moved an application under O. 9, R. 13 of the Civil P. C. The legality of this decision of the lower appellate Court has been challenged in the instant second appeal.

(3.) The vital point for determination in this appeal is whether the impugned order of the trial Court was passed under R. 2 or under R. 3 of O. 17 of the Civil P. C. There is no dispute that an order under R. 2 is hot appealable but an order under O. 3 can 1 appealed against.