S. Acharya, J.
1. The plaintiff in Title Suit No. 50 of 1967 has preferred this appeal against the judgment of the court below confirming the decision of the trial court dismissing the plaintiff's suit.
2. The suit was for issuing a permanent injunction restraining the defendants from entering upon the suit property described in the schedule attached to the plaint and also from interfering in any manner with the possession of the plaintiff over the suit property.
3. In view of the question involved and the decision I am going to take in this appeal it is not necessary for me to deal with the respective cases of both the parties,
4. The suit was posted for hearing on 18-9-72. On one or two previous dates the court had adjourned the hearing of the case on the petition of the plaintiff, but on those dates some documents on behalf of the defendants were filed and were marked as exhibits as formal proof thereof was dispensed with. On 18-9-72 the advocate for the plaintiff applied for time on the ground of illness of the plaintiff. The petition to that effect was supported by a medical certificate. Some of the defendants' witnesses were present on that date. The court dismissed the above-mentioned petition of the plaintiff by merely saying that it did not deserve any consideration. Thereafter the case was called for hearing when the advocate appearing for the plaintiff filed a memo of 'no instruction'. The court then examined the witnesses produced by the defendants, marked some documents produced by the defendants as exhibits in the case and closed the hearing of the case. On 25-9-72 on a discussion of the evidence on record adduced only on behalf of the defendants it dismissed the suit on merits with costs. The plaintiff filed a petition under Order 9, Rule 9 and Section 151 C. P. C. praying to set aside the aforesaid order of dismissal passed by the court on 25-9-72. On that petition M. J. C. No. 232/72 was registered. Against the judgment and decree passed by the trial court the plaintiff also preferred a first appeal on 30-10-72. The lower appellate court confirmed the findings of the trial court only on the defendants' evidence on record and dismissed the appeal with costs. It also rejected the plaintiff's prayer for remanding the case to the trial court for a fresh trial on the ground of the plaintiff's previous laches in the suit. Thereafter M. J. C. No. 232/72 was dismissed as not maintainable.
5. The only question which is raised in this appeal on behalf of the appellant is that in view of the provision of Order 17, Rule 2, C. P. C. the trial court was not legally competent to record the defendants' evidence in the absence of the plaintiff, close the hearing of the suit on 18-9-72, and to dismiss the suit on merits on 25-9-72 only on the ex parte evidence of the defendants. Evidently, on 18-9-72 the case was taken up for hearing after rejecting the plaintiff's petition to adjourn the hearing of the case on the ground of his absence from the court due to illness. As the plaintiff on that date did not adduce any evidence, the court closed the recording of the evidence on behalf of the plaintiff, as specifically mentioned in the order of the said date, and after examining the witnesses produced by the defendants and marking some documents produced by them as exhibits it closed the hearing of the case on that date, and delivered its judgment on 25-9-72 on the said evidence. The provisions of Order 17, Rule 2 apply to this case as the plaintiff remained absent from the court on the date of hearing. The court under that Rule was legally competent to dispose of the suit in one of the modes directed in that behalf by Order 9 C.P.C. or to 'make such other order as it thought fit'. The phrase 'make such other order as it thinks fit' may bring within its sweep the disposal of a suit on merits without dismissing the same under Order 9 C. P. C. But the observation made in this connection in the decisions of this Court reported in 36 Cut LT 400: (AIR 1970 Orissa 149); AIR 1964 Orissa 246 and 1976 OJD 154 must be seen. In paragraph 4 of the Division Bench decision reported in 36 Cut LT 400: (AIR 1970 Orissa 149). (Hindustan Steel Limited v. Prakash Chand Agarwal) it has been held as follows (at p. 151) :--
'Rule 2 provides that on the failure of any or both of the parties to appear on the adjourned date of hearing, two alternative courses are open to the Court. The first is to dismiss the suit for default if the plaintiff is absent or to decree the suit ex parte in case of absence of the defendant. The second course is, instead of following any of the above courses contemplated by Order 9, the Court may pass such other order as it thinks fit. Such other order would ordinarily be to adjourn the suit, although the view of some of the High Courts is that where the plaintiff has made out a case which, if uncontradicted, would entitle him to a decree, but does not appear on the date of adjourned hearing, the Court should not dismiss the suit under Order 9, Rule 8, Civil Procedure Code, but decide the suit on merits, the reason given being that Order 9, Rule 9 does not apply in such circumstances. There appears to us to be no justification for taking such an extreme view that if there are materials on record on the basis of which a decree can be passed either way, Order 9, Civil Procedure Code would have no application. The language of the rule (Rule 2) itself shows that the Court has got a discretion in the matter which must necessarily be exercised judicially.'
So the court in such a case does not lack the power to dispose of the suit finally on the merits. But in exercising its power under Rule 2, the court should exercise its judicial discretion and decide whether it should dismiss the suit on merits or should pass an order under Order 9, C. P. C. or adjourn the hearing of the case on any suitable condition. Ordinarily in such a case it should adjourn the case, which view has been prevailing in the decisions of this Court for about a decade. But in a fit case, depending upon the materials on record and the facts and circumstances of the case, the court may take recourse to either of the other two courses if its judicial conscience enables it to act that way. The discretion to dispose of the suit on merits can be exercised on judicial consideration, and such a decision can be given only when the judge consciously feels that he can adjudge judicially the merits of the respective cases of the parties on whatever materials are available on record. A judicial decision on the merits should satisfy all concerned that the said decision was arrived at on a judicious appreciation of the merits of the respective cases put forward by the parties. In the Full Bench decision reported in AIR 1943 Bom 321 (Basalingappa v. Shidramappa) it has been held that the provision to 'make such other order as it thinks fit' in Order 17, Rule 2 'might enable the court to pass any order, i.e., either to grant further adjournment or dispose of the suit on such conditions as it might think proper. It does not, however, empower the court to decide a suit on the merits if no evidence had been recorded before the default of appearance had taken place. If evidence is led after the default, all further proceedings would be clearly ex parte against the party making the default.' Views similar to the above have been taken in 1976 OJD 154 (Smt. Santilata Dei v. Faimid Khatoon) and in AIR 1922 Patna 2 (Sashibhusan Kumar v. Dwarka Prasad).
6. In the present case before me the court did not have any evidence either oral or documentary on behalf of the plaintiff. No evidence, except marking some documents as exhibits on behalf of the defendants, as formal proof there of was dispensed with, had been recorded in this case before the default of appearance of the plaintiff took place. So whatever evidence was recorded on behalf of the defendants on 18-9-72 was clearly ex parte against the plaintiff. The petition for adjournment filed on behalf of the plaintiff on 18-9-72 was supported by a medical certificate. The trial court without giving any reasons and by merely stating that 'the petition does not deserve any consideration' rejected the said petition, and proceeded to record the evidence adduced on behalf of the defendants in the absence of the plaintiff and his lawyer. In the absence of the plaintiff's evidence, the court could have disposed of the suit on the pleadings of both the parties or could have dismissed the plaintiff's suit it it found that his case failed as the averments in his pleadings were challenged and he did not adduce any evidence in support of his said averments. It could also have passed an order of dismissal under Order 9, Rule 8 or any other order under the 2nd link of Order 17, Rule 2, C.P.C. as it deemed necessary. So it was not necessary for the court to record the defendants' evidence on 18-9-72 in order to deal with the matter in accordance with law on that date.
On the aforesaid facts and circumstances of this case, the court was not justified to record the evidence adduced by the defendants on 18-9-1972 and to deliver a judgment in the suit on merits merely on the said ex parte evidence. Considering the past laches on the part of the plaintiff the court could have properly dismissed the suit under Order 9, Rule 8 C. P. C., which would have afforded an opportunity to the plaintiff to show that his absence from the court on the date of hearing was on account of some sufficient cause. The absence of the plaintiff from the court on two previous dates just preceding 18-9-72 and the dismissal of the suit on two previous occasions for his non-appearance in the court on other dates of hearing should not have actuated the court to dismiss the suit on merits on the basis of the ex parte evidence of the defendants recorded after the default of appearance of the plaintiff had taken place. On the above considerations the dismissal of the suit on merits cannot be justified.
7. The plaintiff, apart from preferring a first appeal against the trial court's order of dismissal of the suit, had also filed a petition under Order 9 Rule 9 C P. C. (M. J. C. No. 232 of 1972) for setting aside the order. That petition was dismissed as not maintainable on 2-7-75, i.e., after the disposal of the first appeal in the court below, by which on the selfsame material the decision of the trial court dismissing the suit on merits was confirmed. As the suit had been dismissed on merits, and it was not a dismissal under Order 9, Rule 8 C, P. C., the petition under Order 9, Rule 9 C. P. C. was not maintainable. Hence the order passed by the trial court on that petition is perfectly correct. But that order does not any way affect the maintainability of this appeal, as this appeal has been preferred against the decision of the first appellate court dismissing the suit on merits.
8. On my finding that the order of dismissal of the suit on the merits was not legal and justified, the said order and the impugned order of the court below confirming the said order are liable to be set aside.
9. On 18-9-72 the plaintiff's application for adjournment was supported by a medical certificate. The court did not then assess the correctness of the said certificate, and it is too late now to direct a probe into that matter. So it would be proper to straightway restore the suit for hearing from the stage as it was on 18-9-72. But while passing that order one cannot lose sight of the fact that the plaintiff did not act diligently while the suit was pending in the trial court, and because of his defaults the disposal of the suit was delayed to a great extent in that court. The suit, therefore, can be allowed to be restored for hearing only on the condition that the plaintiff pays compensatory costs of Rs. 400/- (four hundred) to the defendants or deposits the said amount in the court below within a month from today. In default of payment of the said cost as directed above this appeal shall stand automatically dismissed without further reference to the Bench. If the said amount is paid to the defendants or deposited in court as directed above, the judgments and decrees passed by both the courts below shall be treated as set aside, and the trial court shall take up the suit afresh for hearing from the stage as it was just before the passing of the order on 18-9-72. The cost, if deposited in court, shall be withdrawn by the defendants without furnishing any security.
10. The suit shall be disposed of In an expeditious manner within three months from the receipt of the lower court records with intimation to this Court.
The L. C. R. be sent back immediately.
11. It has been submitted by Mr. Y.S.N. Murty, the learned counsel for the appellant, that if the plaintiff does not regularly participate in the hearing of the suit on the dates to be fixed by the trial court to that effect, then it may be considered that the plaintiff has no evidence to adduce on his behalf and the suit may be disposed of on merits on the materials available on record.
12. This appeal is allowed as per the terms stated above. Each party to bear his own costs of this appeal.