Krishnaswami Nayudu, J.
1. The plaintiff is the appellant in these two appeals. He instituted two suits O. S. Nos. 512 and 513 of 1947 in the District Munsif's Court, Pattukottai, to set aside a decree dated 7-3-1946, passed in M. A. No. 151 of 1946 on the file of the Deputy Collector's Court, Pattukottai, on the ground of alleged fraud in service by the Revenue Inspector. These suits were transferred from the file of the District Munsif's Court, Pattukottai to the District Munsif's Court, Mannargudi, on grounds of administrative convenience by the District Judge, West Tanjore, and were numbered O. S. Nos. 38 and 39 of 1949 respectively. The suits were contested.
2. When the suits were taken up for hearing on 15-3-1949, the plaintiff presented an application I. A. No. 160 of 1949 for an adjournment. By an order passed by the learned District Munsif, the adjournment was refused on the ground that it was bereft of bona fides and the petition for adjournment was dismissed with costs and when the suits were taken up the pleader for the plaintiff stated that the plaintiff was not prepared and refused to proceed with the case or adduce evidence or even examine himself, as the request for adjournment had been refused and therefore, the suits were dismissed. While dismissing the suits, the learned District Munsif observed that he was dismissing the suits under Order 17, Rule 3, Civil P. C.
3. The plaintiff appealed and the learned District Judge of West Tanjore found that no appeal lay against the order of the District Munsif, dismissing the suits, as the suits were actually dismissed for default, the order really being one under Order 17, Rule 2 and not being one under Order 17, Rule 3, C. P. C.
4. The view taken by the learned District Judge appears to be correct, in view of the terms of Rules 2 and 3 of Order 17. Notwithstanding the observations of the learned District Munsif that the dismissal of the suits was under Order 17, Rule 3 it was really a case of dismissal under O. 17, R. 2. The fact remains that the plaintiff, though physically present in court refused to take part in the proceedings after the dismissal of I. A. No. 160 of 1949 for adjournment, as represented by his counsel, and, therefore, he could not be said to have been preset there as plaintiff partaking in the proceedings. His physical presence in the courtcannot be taken cognizance of, and the only conclusion that one can come to is that he did notappear at the hearing. This case, therefore, comesunder Rule 2 of Order 17 which, provides that on aparty failing to appear, the court may proceed todispose of the suit, which the District Munsif haddone in this case by dismissing the suits. Thereis no discussion of the merits of the case nor wasany finding given on the merits, notwithstandingthe physical presence of the plaintiff in court, even about which it may be mentioned, there isnothing to show that he continued to be presentin court after the dismissal of his application for adjournment. (5) Mr. Jagadisa Aiyar sought to support hisargument on the observation of the learned District Munsif that the dismissal was under Order 17,Rule 3 and urged that the order of dismissal beingstated to have been one under Order 17, Rule 3 evenif the learned District Munsif had acted erroneously under an appealable provision of law, oncesuch an order is passed, the right of appeal available to the plaintiff cannot be taken away. Insupport of this contention he relied on a decisionin -- 'Somasundaramma v. Seshagirrao AIR 1947 Mad 378 (A), and the observations of WadsworthJ. in that case, where the learned Judges followed a decision in -- 'Muthiah Chettiar v. GovindaDoss Krishna Doss', AIR 1921 Mad 599 (B).The observations relied on are as follows:
'It was held in AIR 1921 Mad 599 (B)following a considerable line of authority, thatwhen the court wrongly acts under an appealable provision of law and passes an order whichhaving regard to the provision of law underwhich it is appealable, an appeal will lie eventhough the order should have been passed under a provision of law which would not carrywith it a right of appeal. We find it difficult todifferentiate between such a case and the present case.'
6. The case which the learned Judges were considering was one in which the pleader for the plaintiff asked for an adjournment which was refused and then the plaintiff's pleader reported no instructions. The plaintiff, who was present in court was asked if she was prepared to reply to the argument on a certain issue. She said that she wanted to engage another pleader. The court then heard arguments on behalf of the first defendant. While the arguments were proceedings, the plaintiff left the court and her absence also was recorded. The trial Judge, without dismissing the suit for default, heard the arguments and gave a decision in that issue on merits. It was, therefore, held that that decision was one on merits and came within Order 17, Rule 3 and that the plaintiff could not be deprived of the right of appeal, notwithstanding her remedy to apply under Order 9, Rule 9, C.P.C. for the restoration of the case on the ground that it was really dismissed for default.
But in the present case, there was no decision on the merits. The dismissal was for default of the plaintiff to appear in the ease as plaintiff and in such circumstances the order is one really under Order 17, Rule 2 and not one under Order 17, Rule 3. The fact, that the learned District Munsif had taken a wrong view of the provision of law applicable to the order, which he made would not deprive the appellate court from going into the question as to what is the correct provision of law under which the order had really been made. The view taken by the lower appellate court is, therefore, correct.
7. In the result, the appeals fail and are dismissed with costs. Advocate's fee in S. A. No. 650 of 1950.