SUBRAMANIA OTHUVAR Vs. MUNUSAMIYA PILLAI

JUDGEMENT

(1.) THIS suit has been dismissed under Order IX, Rule 8 of the Civil Procedure Code, but Order XVII, Rule 2 of the Civil Procedure Code, only says that when at an adjourned hearing the parties or any of them fail to appear, the Court may" dispose of the case under Order IX of the Civil Procedure Code The word being "may" and not shall" entails on the Court the exercise of some discretion, and this discretion must be judicial discretion. When a plaintiff has closed his case, and there is evidence which if unrebutted would prove his case, it can hardly be deemed a judicial exercise of discretion to dismiss the suit for default, because the defendant and his witness could not be examined. There was no reason why the defence evidence should not have been recorded in plaintiff s absence, and the case disposed of on its merits--and this is the course that the Subordinate Judge should have followed. The plaintiff s Vakil s conduct in throwing up the case can hardly be justified and consequently the plaintiff when left without a legal adviser deserved consideration at the hands of the Court. The view taken is in accordance with that of the Bombay High Court in Nagappa v. Gowdappa 7 Bom. L.R. 261 and following that case, I set aside the decree and order the Subordinate Judge to restore the suit to file and dispose of it on its merits. The costs of this petition will abide the result.