BIRBAL Vs. LAL SINGH

JUDGEMENT

(1.) The plaintiff went up in appeal before the Additional Commissioner. The respondent defendants contended that the only remedy available to the appellant was to apply for setting aside the exparte order and that the appeal was incompetent. This plea found favour with the learned Additional Commissioner and hence the appeal was rejected. Hence this second appeal by the plaintiff.

(2.) The learned counsel appearing for the appellant has argued before us that the order of the trial court, dated 17 -11 1955 was expressed to be under O.17 R. 3, that a decree was also drawn up in accordance with this order, that the trial court had no jurisdiction to set aside this decree and that the only remedy available to the appellant was to go up in appeal against this decree which he did. Reliance has been placed in this connection upon A.I.R. 1948 Nagpur 310. This case bears a marked resemblance to the facts of the present case. In the Nagpur case the counsel for the plaintiff appeared and applied for an adjournment on the ground of the absence of the plaintiff. The court rejected the application and proceeded with the case by examining the defendant. The suit was dismissed and a decree was passed. It was held that the decision was on merits and the case was governed by O. 17, R. 3. A I.R. 1944 Allahabad 211 has also been cited in this connection. It was observed in this case that once the judge has passed the order under R. 3 and not under R. 2, he has no jurisdiction to set it aside.

(3.) On behalf of the respondents reliance has been placed upon a decision of the Honble High Court of Judicature for Rajasthan, Ramkaran vs. Radha Mohan decided on 27.7.52 (1954 RLW. 230). The facts of this ruling are clearly distinguishable from the present case inasmuch as in that case neither the plaintiff nor his counsel was present before the court and what is more important is the fact that no evidence either of the plaintiff or of the defendant was recorded by the court. It was because of these considerations that their Lordships were pleased to observe that even thought the order may be expressed to have been passed under O.17, R. 3 C.P.C. yet it ought to be deemed to have been passed only under O.17, R.2 C. P. C. A I. R. 1953 M. B. 258 has also been cited in this connection. In that case the plaintiff though physically present in court refused to take part in the proceedings after the dismissal of his application for adjournment and it was held that it cannot be said to have been present there as par -taking in the proceedings. His physical presence cannot be taken cognizance of and the only conclusion that one could come to was that he did not appear at the hearing. It was held that case was governed by O.17 R. 2. In that case also there was no decision on merits and the dismissal was for default of the plaintiff.