1. The petitioner filed a suit O.S. No. 278 of 1944 in the Court of the District Munsiff, Kovvur. She asked (a) for arrears of maintenance and (b) for enhancement of the previous rate which had been fixed by a registered document of 1937. The defendant admitting that the arrears of maintenance were due at the old rate alleged that he had made a tender of the amount, namely, Rs. 300; with regard to enhancement, however, he said that the document fixed the rate once for all and that no further enhancement was possible or lawful. On the date of the trial the plaintiff was absent and her pleader filed an application for an adjournment but this was dismissed. He then reported no 'instructions'.
2. The District Munsiff thereupon passed a decree for Rs. 300, being the amount of the arrears of maintenance at the old rate, together with costs, and then having examined the registered document itself and heard the arguments of the defendant and Counsel he held that the plaintiff had no just claim to enhancement and dismissed that part of her suit. In his judgment the learned District Munsiff says:
As there is sufficient material available to decide the case on merits, I proceed under Order 17, Rule 3 of the Code of Civil Procedure.
In this he was clearly wrong. As long ago as 1917 a Full Bench of this Court held in Prativadi Bayankaram Pichamma alias Mangamma v. Kamisetti Sreeramulu (1917) 34 M.L.J. 24 : I.L.R. Mad. 286 that Order 17, Rule 3, Civil Procedure Code, applies only to cases where the parties are present. Here only one party was present and the District Munsiff should have proceeded with regard to the second part of the plaintiff's case under the provisions of Order 17, Rule 2, namely, by dismissing that part in default of her appearance.
3. The plaintiff then applied under Order 9, Rule 9, for an order setting aside the order of dismissal of the second part of her claim. The learned District Munsiff dismissed the application saying that the suit was decided on merits and that the petition did not therefore lie.
4. From this decision she appealed to the Subordinate Judge, Ellore, who in a reasoned judgment came to the conclusion that the only remedy open to the plaintiff in the circumstances indicated above was to prefer an appeal. He also held that the District Munsiff had decided the case under Rule 3 of Order 17, Civil Procedure Code, and went on to say that Order 9, Rule 9, did not apply.
5. In this I think he was wrong. This petition must be allowed. So recently as 6th February, 1947, a Bench of this Court consisting of Wadsworth and Govindarajachari,JJ., in Appeal No. 487 of 1945 : (1947) 1 M.L.J. 19 held that in similar circumstances the plaintiff has two remedies: (1) to appeal against the decree passed dismissing the suit on the merits and/or (2) to proceed under Order 9, Rule 9, Civil Procedure Code. The plaintiff in this case has chosen to proceed under Order 9, Rule 9. This is obviously the more convenient and cheaper course. The orders of the lower appellate Court will be set aside and the petition before the District Munsiff will be restored to file and the matter re-considered on its merits.
6. This civil revision petition is allowed with costs here and the courts below, the matter having been strongly contested from the beginning by the respondent.