Parvathi Pillai and Others vs Kuttan Pillai

M. Madhavan Nair, J.—This G. R. P. is by defendants 1 and 5 against an order of the Subordinate Judge of Trivandrum remanding for fresh disposal the plaintiff''s petition for restoration of the suit under Order 9, Rule 9, C. P. C.

The suit was dismissed on 23-3-1957. On 6-4-1957 the plaintiff filed an application in the trial court under Order 9, Rule 9, C. P. C. He has also preferred an appeal before the District Court of Trivandrum, from the decree dismissing his suit.

The application under Order IX Rule 9 was dismissed by the learned Munsiff on 19-11-1957 on the ground that no such application would lie in the face of the disposal of the suit on merits under Order XVII, Rule 3, C, P. C. The appeal from the decree preferred by the plaintiff was dismissed in the District Court Qn 5-11-1938. Meanwhile the plaintiff had preferred a Civil Miscellaneous Appeal from the order dismissing his application for restoration of the suit. The learned Subordinate Judge before whom that Civil Miscellaneous Appeal came up for disposal allowed the same by an order dated 6-12-1958 holding that Order XVII, Rule 3 could not apply to the instant case and therefore the dismissal of the suit by the trial Court must be deemed to have been made under Order XVII, Rule 2 only and remitted the petition for investigation on the merits of its contents.

The defendants challenge the jurisdiction of the learned Munsiff to hear the restoration application after the appeal from the decree dismissing the suit has been disposed of by the District Court. The contention, is that the decree of the trial court dismissing the suit having merged in the appellate decree of the District Court, the trial Court cannot have jurisdiction to set aside the original decree and therefore the remittance of the restoration application for fresh considoration by the learned Munsiff is unwarranted and ought to be vacated. Incidentally they also challenge the correctness of the order of the learned Subordinate Judge to the effect that the disposal of the suit by the trial Court could not be under Order XVII, Rule 3, C. P. C.

After the examination of the plaintiff for two days, the suit was posted for his cross-examination on 22-3-1957. That day the defendants applied for an adjournment; it was rejected and the case was adjourned to 23-3-1957 for disposal; and on the latter day the defendants applied for permission to continue the examination of the plaintiff before the case was disposed of but the Court rejected the same and dismissed the suit. In the application for restoration the plaintiff avers that since the court on 22-3-1957 expressed that the defendant''s application for time would not be allowed he was waiting outside the Court-room, expecting his case to be taken up, till the Court rose for the day; but the case was never called and so he left with the impression that the case had been adjourned for want of time for the court, that he was not aware of its having been taken up for disposal for the next day and so he happened to be absent on 23-3-1957, on which day it was disposed of against him.

The judgment does not purport to proceed on the basis of default of appearance on the part of the plaintiff. All that is said in the judgment is that the plaintiff has not proved his ease properly and so the judgment is entered against him. The records in the case show that the plaintiff has deposed to his case, that it was for no fault of his that the defendants did not cross-examine him and that there was no reason why the learned Munsiff should not have acted upon his sworn testimony. The reasoning of the learned Munsiff appears to be rather strange.

On the application for restoration, the learned Munsiff has held that the suit has been disposed of, on the merits and not for default of appearance and therefore the application was incompetent. If is evident from the facts stated above that it was not at the instance of the plaintiff that the suit was adjourned for the day it came to be disposed of. Order XVII, Rule 3, C. P. C. empowers the Court to dispose of the suit on merits against a party only in case where the suit has been adjourned at his instance to enable him to produce evi-dence or to do any other act necessary for the pro-gress of the suit. If the suit came to be disposed of on account of the non-appearance of the plain-tiff on a hearing day but the case did not come within the purview of Order XVII, Rule 3, the Court can proceed only under Order XVII, Rule 2 in one of the modes prescribed by Order IX, C. P. C.

The circumstances in which the suit was dis-missed in this case being of the latter type the suit must bo deemed to have been disposed of under Order XVII Rule 2, presumably in the manner pre-scribed by Order IX Rule 8, C. P. C. The application submitted by the plaintiff under Order IX Rule 9 was therefore competent. The disposal of the application on the preliminary ground of its non-maintain ability had therefore to be reversed by the Sub-Court. The remittal of the application to the trial Court for investigation into the truth of the averments made therein appears to be proper. The order of the learned Subordinate Judge, to the extent indicated above, appears to me correct, and I uphold the same.

The question still arises as to whether an application under Order IX Rule 9 can be tried by the original Court after an appeal from the decree has been disposed of by the appellate Court. No case decided on a set of facts parallel to the present one has been cited before me by either of the parties. The disposal of the suit having been professed to he On merits it cannot be said that an appeal was incompetent. The right of appeal depends not on what the Court ought to have done, but on what the Court did. Even if the Court has purported to act wrongly under an appealable section, the decision therein will be appealable. (See (Thakur) Bilas Singh Vs. Emperor , Kammela Somasundaramma Vs. Kammela Seshagiri Rao alias Professor Giri Rao and Others, and Philopose v. Venkitta Subba Iyer AIR 1954 Trav-Co 118). In this case the appeal against the decree dismissing the suit has been disposed of; hut the application moved under Order IX Rule 9 remains yet to be disposed of by the primary Court.

The scope of an appeal under Order XLI C. P. C. and an application under Order IX Rule 9 are obviously different from each other. The ques-tion in an appeal under Order XLI is the merits of the decision on the basis of the pleadings and the evidence on record; but the question in an application under Order IX Rule 9 is the sufficiency of the cause for non-appearance of the plaintiff on the day the case was called for hearing. The nature of the proceedings and the reliefs sought in the two cases are entirely different. If different provisions in the CPC have given a plaintiff, whose suit happened to he dismissed, different remedies for relief against the same, both have to be held to be not exclusive of each other.

It is not contended before me that the question of the sufficiency of the cause for non-appearance of the plaintiff on the day the case was called has been the subject of decision in the appeal and so the appellate judgment cannot he said to have concluded the matter between the parties. When the appeal was heard, the Civil Miscellaneous Appeal from the order on the restoration application was pending in the appellate Court. It would have been proper if both the appeal and the C. M. A. were heard together and disposed of simultaneously. But that was not what was done in this case. The appellate Court has chosen to remit the restoration application for investigation and disposal though the appeal from the decree was dismissed. I hold that the learned Munsiff has, in the circumstances, jurisdiction to decide the sufficiency of cause for non-appearance of the plaintiff on the last day of hearing of the suit in the original Court. In the view I have taken, the order of the learned Subordinate Judge is correct.

The C. R. P. fails. It is dismissed. Costs follow the result.