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Kallu Vs. Lokmad Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1927All507
AppellantKallu
RespondentLokmad Das and ors.
Excerpt:
- - , but it seems to have been of opinion that the scale was turned in favour of the defendants' contention because of the formal order that was prepared in pursuance of the judgment of the learned munsif, which formal order distinctly showed that the suit terminated not by a decree, but by an order dismissing the suit for default. but as the trial court shut out the entire evidence in the case i must and do set aside the decree of that court as well, and remand the case to that court through the lower appellate court with directions to restore the case to its original number and to proceed to dispose of the same according to law......of april 1924 and 12th of may 1924 was fixed for final hearing of the suit.2. on that date the learned munsif passed an order dismissing the suit. that order has been quoted in extenso by the lower appellate court. against the order dismissing the plaintiff's suit the plaintiff filed an appeal in the lower appellate court. in that court he was met by the objection that the order of the learned munsif was one dismissing the suit for default, that is, was an order under order 17, rule 2, civil p.c. and not an order under order 17, rule 3, civil p.c. and as such no appeal lay against that order in the lower appellate court. this contention of the defendants has found favour with the lower appellate court.3. the lower appellate court was of opinion that the order could be interpreted as.....
Judgment:

Iqbal Ahmad, J.

1. This appeal must be allowed. The plaintiff-appellant brought a suit against the defendants-respondents. The suit was decreed ex parte on the 12th of February 1924. On an application being made by Defendants Nos. 1 and 2, the ex-parte decree was set aside, and the case was restored to its original number on the 15th of March 1924 and eventually issues were framed on the 14th of April 1924 and 12th of May 1924 was fixed for final hearing of the suit.

2. On that date the learned Munsif passed an order dismissing the suit. That order has been quoted in extenso by the lower appellate Court. Against the order dismissing the plaintiff's suit the plaintiff filed an appeal in the lower appellate Court. In that Court he was met by the objection that the order of the learned Munsif was one dismissing the suit for default, that is, was an order under Order 17, Rule 2, Civil P.C. and not an order under Order 17, Rule 3, Civil P.C. and as such no appeal lay against that order in the lower appellate Court. This contention of the defendants has found favour with the lower appellate Court.

3. The lower appellate Court was of opinion that the order could be interpreted as an order either under Rule 2 or Rule 3 of Order 17, Civil P.C., but it seems to have been of opinion that the scale was turned in favour of the defendants' contention because of the formal order that was prepared in pursuance of the judgment of the learned Munsif, which formal order distinctly showed that the suit terminated not by a decree, but by an order dismissing the suit for default. I am unable to agree with the lower appellate Court.

4. On the date on which the learned Munsif dismissed the suit both the parties were present in Court. It is, therefore, impossible to hold that the order of the learned Munsif could have been under Rule 2 of Order 17, Civil P.C., which rule applies only when one of the parties or both the parties are absent. The fact that a formal order and not a decree was prepared by the office of the, Munsif cannot be decisive of the question as to whether or not the decision of the Munsif was one under Rule 3 of Order 17 Civil P.C. Both the parties being present the learned Munsif could only proceed under Rule 3 of Order 17, and even if his judgment or order is ambiguous it must be so interpreted as to be in conformity with the provisions of the law. That being so I must hold that the only course open to the learned Munsif being to proceed under Rule 3 of Order 17, Civil P.C., he did proceed under that rule. The view that I take is in consonance with the view taken in the cases of Johari Mal v, Chandra Sen [1926] 95 I.C. 798., Chuttan Lal v. Kanhaya Lal [1912] 10 A.L.J. 478 and Ram Adhin v, Ram Bharose : AIR1925All182 .

5. Reliance has been placed by the lower appellate Court on the case of Nasir Khan v. Itwari A.I.R. 1924 All. 144. All that was decided in that case was that the right of appeal depends on what the Court actually did and does not depend on what the Court ought to have done. In the present case it cannot be said that the Court did actually proceed under Order 17, Rule 2, Civil P.C. and, therefore the contention of the defendants that the suit was dismissed for default and no appeal lay to the lower appellate Court is untenable.

6. For the reasons given above I must set aside the decree of the lower appellate Court. But as the trial Court shut out the entire evidence in the case I must and do set aside the decree of that Court as well, and remand the case to that Court through the lower appellate Court with directions to restore the case to its original number and to proceed to dispose of the same according to law. Costs here and hitherto will abide the result. This order will have no effect against Defendant No. 3 who was exempted from the suit.


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