1. This appeal arises out of a judgment which purports to dismiss the appellant's suit on a preliminary issue. An objection was raised to the maintainability of the appeal based on the contention that the decision must really be regarded as one of dismissal for default under Order XVII Rule 2 of the Code of Civil Procedure, and that in such circumstances the only remedy is by way of an application under Order IX, Rule 9 to set aside the dismissal, and that such an application having been made in this case and having been rejected, no appeal against the decree in the suit can lie.
2. The plaintiff appellant filed the suit against her two brothers praying that the first defendant be directed to deliver to the plaintiff certain moveable properties or pay the value thereof. The suit was filed in the Court of the Subordinate Judge of Bezwada and was transferred to the Court of the Subordinate Judge of Masulipatam. In the latter Court the contention was taken by the first defendant that issue No. 2 which is ' whether the allegations in the plaint disclose any cause of action entitling the plaintiff to sue as heir to late Lakshmikantamma ' should be tried as a preliminary issue. The suit was posted for arguments on this issue and was adjourned to the 4th April, 1944, on which date the plaintiff filed a petition to amend the plaint so as to clarify her case. This petition involved a series of stay orders, since the amendment was refused and the matter was taken up on revision to the High Court, the revision petition being finally dismissed. The matter came up for arguments again on issue No. 2 on the 14th February, 1945, when at the request of the plaintiff's pleader it was adjourned to the 19th February. On that date a further adjournment was refused and the plaintiff's lawyer reported no instructions and withdrew. The plaintiff who was present in Court was asked if she was prepared to reply to arguments on the second issue. She said that she wanted to engage another pleader. The arguments on behalf of the first defendant were then heard, and while these arguments were proceeding the plaintiff left the Court and her absence was recorded. The learned Subordinate Judge however did not proceed to dismiss the suit for default. He heard the arguments out and then gave a considered finding on issue No. 2 to the effect that the plaintiff had no cause of action to maintain the suit on her own admissions as contained in paragraphs 3 and 4 of the plaint. In view of this finding a further trial of the issues was held to be unnecessary and the suit was dismissed. This decision purports to be a decision on the merits. Nevertheless the plaintiff tried to get the suit restored to file by means of an application under Order IX, Rule 9, which was dismissed. She filed a Civil Miscellaneous Appeal against the dismissal of that application and at the the same time filed the present appeal against the decree treating it as a decree on the merits. The Civil Miscellaneous Appeal failed.
3. It is argued for the respondents that on the authorities it must be taken that, when the plaintiff is absent, even if the Court purports to decide the suit on the merits and dismisses it, the decision must be regarded as a dismissal for default, the remedy against which is an application under Order IX, Rule 9 and that if the decision is really to be regarded as dismissal for default, there can be no question of an appeal against the decision as a decision on the merits. We are not concerned here with the class of cases where the Court decides the suit in circumstances which justify the conclusion that the plaintiff though physically present, was not actually appearing for the purpose of conducting the case. Here the plaintiff was physically absent during the later portions of the arguments of the first defendant's lawyer and at the time when the case was closed. We may take it that the learned Subordinate Judge should in such circumstances have passed an order dismissing the suit for default, and that when he did not do so, but purported to pass a decree based on a finding on the merits against the plaintiff, the plaintiff will not on the reasoning of the Full Bench in Pichamma v. Sreeramulu (1917) 34 M.L.J. 24 : I.L.R. Mad. 127. be deprived of the remedy of applying under Order IX, Rule 9, for the restoration of the suit on the ground that it has really been dismissed for default. But does this mean that, because the plaintiff has the right to ask for the relief which would have been available had the Court passed an order under the correct provision of law, the plaintiff has lost the right which the law gives for appealing against an adverse decree on the merits?
4. No direct authority has been quoted before us either for or against the appellant on this point. It has, however, been argued by Mr. Satyanarayana Rao for the appellant that the analogy of cases like Latchamanan Chetti v. Ramanathan Chetti : (1904)14MLJ436 and Muthiah Chettiar v. Govinddas Krishnadas : AIR1921Mad599 should be applied. Here the Subordinate Judge wrongly in the absence of the plaintiff, proceeded to go into the merits of the preliminary issue and on the adverse finding on that preliminary issue passed the decree dismissing the suit. No doubt, the judgment refers to circumstances which would have justified the dismissal of the suit for default, but the learned Judge does not purport to dismiss the suit for default. He purports to dismiss it because he does not agree with the contention of the plaintiff and does agree with the contention of the first defendant on the preliminary issue. It was held in Muthiah Chettiar v. Govinddas Krishnadas : AIR1921Mad599 following a considerable line of authority that when the Court wrongly acts under an appealable provision of law and passes an order which, having regard to the provision of law under which it is passed, is appealable, an appeal will lie even though the order should have been passed under a provision of law which would not carry with it a right of appeal. We find it difficult to differentiate between such a case and the present case. The Subordinate Judge wrongly passed a decree on a finding on the merits adverse to the plaintiff who was absent. No doubt it is recognised that the plaintiff can get the suit restored on showing that she was absent for good reason, but the fact that this remedy has been recognised, surely should not deprive her of the remedy which the law allows to a plaintiff against whom a decree has been passed dismissing the suit on the merits. Merely because this decree can for certain purposes be treated as the order which ought to have been passed, it does not seem to follow that for the purpose of appeal we are not to have regard to the decree which was in fact passed. In this view we are of opinion that the appeal lies.
5. Turning to the merits of the appeal the decision of the preliminary issue depends upon the view which is taken of the pleadings. The plaintiff describes herself as the daughter of her mother Audilakshmamma and as belonging to the Kalavanthula caste. She describes her brothers also as being sons of Audilaskshmamma with no reference to their father, but as being of Telaga caste. In the body of the plaint it is recited that the plaintiff and her two sisters remained unmarried and were earning their livelihood by prostitution, and that defendants 1 and 2 married women of caste and followed independent professions and had no relationship with their prostitute sisters. Then it goes on to assert that Lakshmikantamma had amassed wealth in the profession of a prostitute and had died intestate and that the plaintiff being her only surviving childless prostitute sister was the sole person entitled to succeed to Lakshmikantamma's estate, and it goes on to assert that the defendants falsely claiming to be the heirs of Lakshmikantamma had been attempting to divide the property. The written statement of the first defendant be gins by asserting that the description of the plaintiff as of Kalavanthula caste is invented for the purpose of the suit and that she, the defendants, their deceased sisters and their ancestors belong to the Telaga caste and are governed by the ordinary law. He also denied the allegation that the plaintiff and her deceased sisters were living by prostitution. When issues were framed, objection appears to have been taken which led to the framing of issue No. 2 extracted in the beginning of the judgment. The objection seems to have been that the plaintiff had not set forth any special custom whereby she was entitled to succeed to her deceased sister and that the theory that prostitution severs the tie of kinship between a woman and her blood relations is no longer good law. The plaintiff sought to meet this contention by praying for the amendment of her plaint by including a plea that 'she belonged to Kalavanthula alias dancing girl caste and according to the custom prevailing in that community she was entitled to succeed.' This amendment was opposed on the ground that it was changing the nature of the suit and the trial Court rejected the application. In revision Byers, J., held that ' all the facts necessary regarding the status and profession of the deceased have already been included in the plaint and the refusal to allow the amendment is no error of jurisdiction.' This learned Judge seems to have been of the opinion that the plaint as it stood forms sufficient basis for the case which the plaintiff proposed to put forward. The learned Subordinate Judge, however, in dealing with this issue has placed great emphasis on the fact that the plaintiff described her brothers as Telagas by caste and has assumed that she was admitting that she and her sisters were also Telagas who had fallen into prostitution and was basing her claim solely on the theory that the degraded women succeed, one to the other, and were no longer bound by relationship to their undergraded kindred.
6. It seems to us that the learned Subordinate Judge has been at pains to force the plaintiff into a legal position which she never intended to take up. Seeing that the plaintiff starts by describing herself as of the Kalavanthula caste (which is admittedly a caste of dancing girls) as the daughter of her mother and not of her father, and goes on to assert that she and her sisters were practising prostitution while the brothers had married women of caste and were living by independent profession, it is clear that the intention of the plaintiff was to allege that the caste to which she and her sisters belonged was the dancing girl caste, that they followed the dancing girls' profession and that the brothers by marrying women of respectable communities had gone out of the caste in which they were born. If that is so, the description of the brothers as Telagas would be no more than a recognition of the description which the brothers would apply to themselves. It is suggested that the practice of the male members of the dancing girl community who marry and live respectable lives is to describe themselves as belonging to a caste other than the one in which they were born. The plaintiff by describing her brothers as Telagas seems merely to have used the description by which they would not ordinarily be known. We do not find any clear indication in the plaint that the plaintiff was proposing to rely on the obsolete Rule regarding succession to the estate of the degraded women. That the plaint was not misunderstood by the first defendant is clear from his written statement in which he denies the assertion that the plaintiff and her sisters belong to the Kalavanthula caste or are prostitutes. He tries to make out that the plaintiff is a Telaga by caste in order to show that the special Rules relating to the succession to women of the Kalavanthula caste would not apply to them. No doubt the plaintiff might have made her plaint more clear and it seems to us regrettable that her attempt to clarify her pleadings by way of amendment was opposed and rejected ; but we do not read the plaint as putting forward the case which the learned Subordinate Judge has deduced from it. The question whether the plaintiff and her sisters are in fact members of the dancing girl community and the question of the precise character of the customary law which will govern them are matters for evidence ; but on the plaint read as, we think, it was intended to read, we are of the opinion that the decision of the learned Subordinate Judge on the second issue was wrong.
7. In the result, therefore, we allow the appeal and remand the suit to the lower Court for disposal according to law after recording such evidence as the parties may adduce. The respondents will pay costs in the appeal. The costs in the suit will abide the result. Court-fee on the memorandum of appeal will be refunded.