Viswanatha Asari vs Sami Asari alias Maghasaya Asari

Odgers, J.—In this case it is contended that the order of the Sub-Judge is wrong in that it disposed of the suit on the merits whereas, as the

plaintiff was absent, he ought to have proceeded under Order XVII, Rule 2, of the Civil Procedure Code, in dismissing ''the case for default

instead of under Order XVII, Rule 3. As against this, it appears that the plaintiff was not absent but was represented by the Pleader who asked for

an adjournment which was refused. Patinhare Tarkatt Rama Mannadi v. Vellur Krishnan Menon 26 M. 267 is authority for the proposition that in

such a case the suit cannot be dismissed for default but a judgment must be written and the case disposed of. No authority is cited to the contrary.

It is further contended that no revision lies, as this is not an ex parte decree, but the remedy of the petitioner is to proceed by way of appeal from

the decree against him. The petition cannot, therefore, be brought against the order refusing restoration of the suit on the ground that the suit was

dismissed for want of evidence and was not dismissed ex parte.

As I must hold that the plaintiff was present by his Pleader in this case, Vaiguntathammal v. Valliammal Ammal 41 Ind. Cas. 710 : 41 M. 256 : 6

L.W. 337 : (1917) M.W.N. 743 is the authority for holding that Order XVII, Rule 3, is applicable and the learned Subordinate Judge was right in

the order he made. I am inclined to think that the other point taken for the respondent on the authority of Gundan v. Rama Chetti 33 Ind. Cas. 660

: 3 L.W. 524 is also sound but in view of my finding on the other point, it is not necessary to say anything more with regard to that.

Assuming a revision petition will lie, I hold the order of the Subordinate Judge, was correct and there is no ground to interfere with it.

This civil revision petition is dismissed with costs.