R NAMPERUMAL NAIDU Vs. ALWAR NAIDU

JUDGEMENT

(1.) This is an appeal against the order of the Subordinate Judge of Trichinopolyi refusing to restore to file O.S. 87 of 1920 which was dismissed by his predecessor on 17 September 1923. The suit was for partition and recovery of one-third share of the plaint properties. The plaintiff based his claim on a "will" purporting to have been executed by the deceased father of himself and defendants 1 and 2. The contesting defendants raised the plea that the "will" was not a true one binding on them. After the framing of the issues the case was posted for final hearing, but it had to be adjourned from time to time as the "will" and the connected records had been filed in a criminal Court in some proceedings between the parties. The case was last adjourned for the purpose of securing the "will" to 4 September 1923. On 3 September 1923, the "will" was received by the Court. On the 4th, as the parties were not ready with their evidence, and at their joint request, the case was adjourned to 17 September 1923. On 17 September 1923 an application was made for an adjournment by the plaintiff's vakil; but the Subordinate Judge dismissed the application. When the adjournment was refused the plaintiff's vakil does not seem to have said that he had no instructions but he took no further part in the case. The plaintiff himself was present in Court. He also asked for an adjournment and when that was refused he refused to go on with the case. The Subordinate Judge then wrote a judgment and dismissed the plaintiff's suit on 17 September 1923. As regards the plaintiff's request to adjourn the case, this is what appears in the B diary: Plaintiff in person wants time again. Time refused. Plaintiff refuses to go on with the case. Suit is dismissed without costs.

(2.) The plaintiff afterwards filed an application for restoration. The Subordinate Judge who dismissed the suit sent notice to the defendants. His successor heard the application and declined to restore the suit; the present appeal is against his order.

(3.) It is argued before us by the respondents that the disposal of the suit by the Subordinate Judge was under Order 17, Rule 3, Civil P.C., that the plaintiff's remedy, if any, is only by way of review or appeal and that, in the circumstances, no petition could be maintained under Order 9, Rule 9, Civil P.C., for restoration. On behalf of the petitioner it is contended that the suit was disposed of under Order 17, Rule 2 and that Order 9, Rule 9, Civil P.C., isapplicable.