BANWARILAL Vs. NATHULAL

JUDGEMENT

(1.) THIS is a revision against an order of the learned District Judge, Kotah, dated the 13th of October 1950. The non-petitioner Nathulal instituted a suit against Banwarilal petitioner in the Court of Munsif, Sultanpur. The plaintiff did not appear on 22nd of November, 1949, which was an adjourned hearing. The court recorded some evidence for the defence and dismissed the suit as if on merits. The plain tiff, however, considered the order to be one under Order XVII Rule 2 read with Order 9 Rule 8 of the Civil Procedure Code and presented an application for restoration of the suit on the 23rd of November, 1949. The Munsif rejected the application holding that the suit had been decided on merits under Order XVII Rule 3 of the Code and the remedy was by way of an appeal. On appeal, the learned District Judge was of opinion that the plaintiff had never asked for an adjournment and the proceedings of Order XVII Rule 3 were inapplicable. He held that in spite of the learned Munsif proceeding to decide the case as on merits, it should have been considered to be one as of dismissal for default of appearance and the petition for restoration was properly presented. He remanded the case for decision of the restoration application on Merits. The present revision is directed against that order.

(2.) THE case come before a Single Judge of this court and was referred to a Division Bench owing to a difference of opinion as to whether the proper remedy is by way of an application under Order IX Rule 9 of the Code or an appeal against the decision pur porting to have been given on merits, or the latter view the leading authority is Ghun-dan vs. Camakha Rama Chetti (I ). THE judgment is a brief one and purports to rely on an earlier case reported in Chandramathi Ammal vs. C. S. Narayanasami Iyer (2 ). In that case, the plaintiff was absent on an adjourning, hearing but the Munsif proceeded to decide the case on merits. On application by the plaintiff, the suit was restored, but on revision, the High Court held that the disposal of the suit was under Order XVII Rule 3 of the Code and a restoration application was incompetent. In the meanwhile, the plaintiff had also filed an appeal against the decision of the trial court, which was dismissed by the first appellate court, but on second appeal, the Madras High Court held that the Munsif should have dismissed the suit under Order XVII Rule 2 and the decree of the Munsif was reversed and then the dis-posal of the suit was considered to have been done under Order XVII Rule 2 of the Code THEir Lordships, however, did not consider it necessary to direct the Munsif to pass a fresh order under Order XVII Rule 2 and the then hear the application for restoration. It was conceded that the High Court had ample power under Order XLI Rule 33 to substitute a proper order under Order XVII Rule 2 and as the grounds for restoration were also before the court, to further order the restoration of the suit. In Ghundan's case (1), the same round about procedure was recommended to be followed by the plaintiff, but it does not seem to have been kept in mind that round about process was followed because of the earlier decision in the same case that the restoration application was not competent. With respect to learned Judges the round about procedure adopted in this case does not appeal to us. THE decision in Ghundan's case (l) was however followed in Lal Chand vs. Kaka Ram (3 ). This decision again is a very short one and no reasoning is found in it.