DURGA DASS Vs. PRABHU DEVI

JUDGEMENT

(1.) THIS civil revision. is against the order dated 15 -11 -1977 of the Munsiff Samba ordering the restoration of the suit.

(2.) IN a suit for dissolution of partnership and rendition of accounts the plaintiff was ordered to produce her evidence, but despite repeated opportunities granted to her in this behalf, she failed to produce her evidence. The case was thereafter posted on 21 -4 -1977, when on that date the plaintiff failed to appear and also did not produce any evidence. The court consequently dismissed the suit. An application for restoration was made by the plaintiff before the trail court. An objection was taken on behalf of the defendant -respondent that no application under 0.9 would lie inasmuch as the order of the trial court fell within order 17 rule 3 C.P.C., which was appealable. The learned Judge, however, did not agree with the contention of the defendant -respondent. He held that the order was purported to have been made under rule 2 of order 17 and not under rule 3 of the said order and, therefore, the application was maintainable. He accordingly restored the application on payment of Rs. 30/ - as costs to the other side. Against this order of the trial Judge, .the defendant -respondent has come up in revision before this court.

(3.) MR . Joginder Singh appearing for the petitioner has submitted that the trial court has taken an erroneous view of the law as the order dated 21 -4 -1977 clearly* fell within rule 3 and not under rule 2 of order 17 C. P. C. It is submitted that time was given to the plaintiff to produce her evidence. She failed to produce her evidence and also failed to do something for the further progress of the case with the result that on the day when the impugned order was made, she remained absent and the trial court dismissed the suit not for default. It would be assumed that the order of dismissal has proceeded on merits of i the case. In this connection the learned counsel has relied upon. A.I.R. 1964 Rajasthan, 147.