VELAYUDA MUDALIAR Vs. SUNDARASAM PILLAI

JUDGEMENT

(1.) In this case the District Munsif, after framing issues, ended his judgment, "The plaintiffs are absent. The suit is dismissed with costs." The respondents-plaintiffs before us then brought a regular appeal against the dismissal by the District Munsif. The Subordinate Judge dealt with this as a regular appeal, allowed it and remanded the case for fresh disposal after taking any evidence which might be adduced by both sides. That order is objected to here as without jurisdiction in the supplementary grounds of appeal which have been filed before us. It is, we believe, the practice in this Court to allow an objection to be taken to an order on the ground of want of jurisdiction by way of appeal. In any event, in the present case we should be ready to treat the appeal as a petition for revision and use our re visional powers.

(2.) The objection to the lower Appellate Court's disposal of the matter as an appeal is that the dismissal by the District Munsif was, we must hold with reference to the wording of his order, under Order IX, Rule 8; and could, therefore, be displaced only by the District Munsif under Order IX, Rule 13, or a successful appeal from an order under that provision. This is in accordance with Gilkinson V/s. Subramania Ayyar 22 M. 221 : 8 M.L.J. 287 : 8 Ind. Dec. (N.S.) 158, no doubt a decision under the former Code, and also with Parbati V/s. Toolsi Kapri 20 Ind. Cas. 1 : 18 C.L.J. 128 : 18 C.W.N. 604 a decision under the Code now in force. We respectfully follow these decisions.

(3.) The argument of the plaintiffs-respondents before us is only that the dismissal was really under Order XVII, Rule 3, It does not appear to us in view of the wording of the District Munsif 's judgment to have been so; and there is nothing before us on which we can find that there were facts to bring what happened within Order XVII rather than Order IX. In any case, the decision in Prativadi Bhayankaram Pichamma V/s. Kamisetti Sreeramulu 43 Ind. Cas. 566 : 41 M. 286 : 41 M. 286 : 34 M.L.J. 24 : 23 M.L.T. 11 (1918) M.W.N. 92 (F.B.) is clear that it was open to the District Munsif in case of default, and we must consider this as a case of default by the plaintiffs, even after the first hearing, to apply the provisions of Order IX. Taking this view we allow the appeal, set aside the order of the lower Appellate Court and restore the decision of the District Munsif with costs throughout.