1. This original side appeal has been filed against the judgment of a learned single Judge by which he dismissed Appln. No. 1165 of 1981 which is filed by the appellant-plaintiff for setting aside the dismissal of C. S. 246 of 1973 in the following circumstances. The plaintiffs suit was taken up for trial on 26-11-1979. On that day, the plaintiff applied for time on the ground that he had to obtain certain documents. The adjournment was refused by Nainar Sundaram, J. On the very saint day, the learned Judge dismissed the suit. While dismissing the suit the learned Judge observed that the plaintiff has declined to lead evidence and prosecute the suit on the ground that he had to get documents from, other sources. Further, the learned Judge observed that the plaintiff had to discharge his burden of proof so as to enable the Court to consider the grant of reliefs prayed for by him and the plaintiff was not prepared to produce his evidence to substantiate his case. The learned Judge also was conscious that there was no material placed before the Court for considering the case of the plaintiff at all. With these observations the learned Judge said 'In the said circumstances, this Court has no other alternative but to negative the reliefs prayed for in the suit for want of substantiation of the plaintiff's case and lack of evidence. Hence the suit is dismissed under Order 17, Rule 3 (a), C. P. C. but I make no order as to costs.'
2. The plaintiff then filed 1. A. No. 1165 of 1981 for restoration of the suit. Shanmukhan J. dismissed the said application. Before the learned Judge, a preliminary objection was taken by the first respondent that the dismissal of the suit by Nainar Sundaram, J. on 26-11-1979 was a dismissal on the merits and hence the plaintiffs remedy would be to file an appeal against the said judgment and an application for restoration of the suit would not be maintainable. The learned Judge held that since the order of dismissal of the suit was on the merits under Order 17, Rule 3 (a), C. P. C., the remedy of the plaintiff would be to file an appeal and not an application for restoration. Accordingly, the learned Judge dismissed the application by his order dated 10-8-1981, and hence this 0. S appeal by the plaintiff.
3. The plaintiff who appeared in person submitted that the order passed by Nainar Sundararn J. was essentially a dismissal for non-prosecution. He argued that the learned Judge himself had refused the adjournment prayed for by the plaintiff and had noted that the plaintiff refused to prosecute the suit by letting in evidence. Consequently, the dismissal of the suit would be deemed to be essentially for non-prosecution on the part of the plaintiff. The plaintiff further referred, to Order 20, Rule 5-A, C. P. C. which has been introduced by the Amending Act 1976, to the effect that when a party appears in person it is the duty of the Court while delivering judgment to put in writing that the party has a right of appeal specifying the Court in which the appeal would lie and also the period of limitation therefor. According to the plaintiff the learned Judge must be presumed to be aware of Order 20, Rule 5-A, C. P. C. and in as much as the learned Judge had not recorded in writing that an appeal would lie from that order and had pot stated the time within which such an appeal could be filed, the learned Judge himself thought that he was dismissing the case for non-prosecution and that no appeal would lie from that order.
4. At our request Mr. K. N. Balasubramanian, advanced arguments on the question, whether the only remedy of the plaintiff was to file an appeal against, the dismissal of the suit by Nainar Sundaram J. or an. application for restoration of the suit would be maintainable. Mr. K. N. Balasubramanian argued that Order 17, Rule 3 (a), C. P. C. could be invoked only where there is already some material on record to enable the Court to adjudicate upon the issue arising for consideration in the case. Further, in order to attract O. I7 R. 3(a) C, P. C., the following conditions should be satisfied. The party to a suit must have been granted time to produce his evidence or to cause the attendance of his witnesses or to perform any, other act necessary , to the further progress of the suit and he must have failed to comply with the order of the Court. Then he must be present in Court. If these conditions are satisfied, then it is open to the Court to proceed under 0.17,R. 3 (a), C. P. C. Mr. Balasubramaniam, further submitted that the language used in Order 17, Rule 3 (a) is that it these conditions are satisfied, the Court can proceed to decide the suit forthwith. According to the learned counsel when the Legislature had used the word 'decide' there must be some materials before the Court on the basis of which the Court can be said to have decided the case on the merits, When the plaintiff has not let in any evidence or has failed to prosecute the suit, the Court would not be in. a position to decide the suit. According to the learned counsel it would be , travesty of justice to say that there has been a judgment an the merits when absolutely no evidence has been let it by the parties and essentially the suit is dismissed for non-prosecution. On the other hand, Mr. Paul Pandian. the learned counsel for the respondent relying on the judgment of the Full Bench in PichammaV.Sreeramulu, ILR (1918) Mad 286 : AIR1918 Mad 143 stated that when a plaintiff is present and the Court dismisses the suit in a situation contemplated under O.17,R. 3 (a), C. P. C., ft could only be a decree and the right of the party was to file an appeal. The learned counsel further argued that the very provision itself contemplates that when an adjournment has been granted to a party for a particular purpose and the party does not comply with the purpose for which the adjournment has granted, the Court will be entitled to pass a judgement. on, the merits. In such cases only an appeal, would 1ie and, not an application for restoration.
5. Though a number of cases were, cited at the Bar, in the view that we take it is unnecessary to refer to all the decisions. Mr. Paul Pandian conceded that on the facts of, the Full Bench case in Pichamma.v: Sreeramulu, ILR (1918) Mad 286 : AIR. 1918 Mad 1 there were materials in the form of oral and documentary evidence' adduced on the side of the plaintiff on a consideration of which the Court passed the decree in favour of the plaintiff. Mr. Paul Pandian has not been able to cite before use any case where the suit happened to be dismissed for want of any evidence on the side of the plaintiff where, the entire burden of proof was on him and that it was construed to be a decision on the merits and: the only remedy available to the plaintiff was held to be to file an appeal.
6. One thing that cannot be disputed is that Order 17 enables a Court to decide a case either under Order 17, Rule 3 or under the what exactly the Court has done will depend upon the facts and circumstances of the situation. The fact that the Court has cited the provisions of Order 17, Rule 3 (a) for the purpose of dismissing, the suit will not be conclusive on the question whether the decision was on the merits or not. ln every case, the Court will have to lift the veil and find out whether really the decision was on the merits. , If the Court comes to the conclusion that the suit happened to be dismissed really on the ground of non-prosecution on the part of the plaintiff, then notwithstanding the fact that the provisions of Order 17, Rule 3 havebeen cited by the Court, it will be open to consider the order as really One for nonprosecution and not on the merits if an order in law and substance is an order under Order 9 though purported to be under 0. 17,R .3 it would cause unnecessary expenditure of time and money to an aggrieved party if he is compelled to file an appeal instead of an application for restoration. obviously, a magority of such cases, particularly in cases where the suit is dismissed for nonprosecution, the decree cannot be at all of a the merits as there will be no evidence at all for the appellate Court to consider. The present case is a clear illustration of the same. In such case all that the appellate Court should do. if it accepts the case of the appellant, will be to set aside the decree on the ground that the trial Court was not justified, in proceeding under Order 17 Rule3, and remand the case .Thus the parties will be in the same position as they would have been if the defaulting party had been originally permitted to file a restoration application and had. not been compelled to file an appeal. We are of the opinion that notwithstanding the fact the Court reports to act under Order 17, Rule 3, if the circumstances set out by the Court are such that an order under 9 read with 0. (7, P1. 2 ~ would be legally justified and the actual order passed is one which could be legally passed under Order 9 read with order 17, Role 2 it is permissible for the Court to entertain an application for restoration under Order 9. In this case, even though the party was present his appearance must be deemed to have been only for the purpose of requesting for an adjournment Once the adjournment was refused, there was default on his part to prosecute the suit further. I his position is supported by a Full Bench decision of the Allahabad High Court tin Munnalal v. Jai Prakash, : AIR1970All257 . There, the facts are these. A suit was filed by the respondent against the appelant for rendition of accounts and recovery of commission. May 6, 1965 was an. adjourned date of hearing. On that date, the defendant was absent and the Court recorded an order in the order sheet to the following effect. This is an adjourned date of hearing because the defendant bad been allowed adjournment on the previous date, viz. 14-4-1965. The defendant today has failed to appear and in my view this suit Should be heard under R.3 of O. 17, C. P. C. I accordingly procced to hear the suit under Order 17, Rule 3, C. P. C.' Thereafter the plaintiff's witnesses were examined and the next day was fixed for judgment. On May 7,1965 the Court delivered its Judgment. decreeing the suit on merits. The appellant than, filed an application to set aside the decree treating it as ex part decree. The application was dismissed for the following reasons. For the reasons given in the English note dated 6-5-1965, the suit was decided under O. 17, R. 3, Civil P. C. and therefore, this application for, setting aside the, decree is not maintainable and is hereby rejected. In this situation, the following question was referred for the opinion of' the Full Bench- Whether a decision recorded specifically under Order 17, Rule 3, C.P.C. would exclude relief under the provisions, contained in 0. 9,C. P. C' irrespective of the question whether, in recording its decision under-Rule 3 the Court acted rightly, or wrongly. The Full Bench answered the question referred, to, in these terms (at p. 26 1): -
'Our answer to the question referred is that it is permissible to entertain an application for restoration under Order 7 even when the Court purports to act under 0, 17, Rule 3, if the circumstances set out by the Court are such that an order under Order 0 read with Order 17, Rule 2 would be legally justified and the actual 'order passed is one Which could be legally passed under 0. 9 react with O. 17, R. 2.'
After extracting a passage from the Full Bench. decision of that Court in Latta Prasad v: Nand Kishore, ILR (1900) All 66, the Allahabad High Court observed thus:-
'What has been said by the Full Bench regarding Section 103 (Order 9, Rule 9) applies equally to Order 9, Rule 13. A suit is decreed under Order 9, Rule 13 if apart from the more description which the Court gives to its action, the real meaning and substance of the Court's action is that if proceeds to decree the suit on the view that the plaintiff appears and the defendant does not. We have accordingly come to the conclusion that, if the facts, on the basis of which the Court has proceeded under O.17, R, 3, are such Under which order under . 17, R. 2 react with O. 9 would be legally justified and the order actually passed is also one which could be legally passed under O. 9, it is permissible to hold that the order is an order under O. 9, and that an application under O. 9, R. 9 or 13 as the case may be, lies.'
'The Allahabad High Court then observed: -
The view which we are taking, appears to us to be just and equitable also.
We are in respectful agreement with the view expressed by the Full Bench of the Allahabad, High Court.
7. In this case, we can construe the appearance of the plaintiff only for the purpose of making a request for adjournment. Thereafter, he has failed to prosecute the suit. Even though the learned judge has stated that the suit was being disposed of under Order 17, Rule 3, the real meaning and substance of the Court's action is only to dismiss the suit for non-prosecution. We therefore hold that the application for non-prosecution is maintainable.
8. Shanmukham, J. has dismissed the application only on the ground that an application for restoration is not maintainable. He has not expressed any opinion whether the appellant is entitled to have the, suit restored. We therefore remit the, matter back in the original side of this Court for the application being taken on file and disposed of on the merits. The appeal is allowed. However, there will be no order as to costs.
9. We record our appreciation for the valuable assistance rendered to us by Mr. K. N. Balasubramaniam with his lucid and learned arguments.
10. Appeal allowed.