1. The point taken in this appeal by Mr. Narayanaswami Aiyar is that the Subordinate Judge who upheld the decree of the District Munsif was wrong and that the procedure must be taken to have been under Order 9, namely, a dismissal for default on which an application for restoration could be made. There has been no argument on the merits before me and I therefore adopt the finding of both the Lower Courts that the plaintiff in this case has been guilty of culpable negligence in not taking the steps necessary for the trial of his suit. Now much has been made of the fact that the plaintiff was personally present in Court when he had a vakil there who applied for an adjournment which was refused. This has rightly been construed not to be an appearance by the plaintiff for the purposes of Order 41, Rule 17, for which Second Appeal No. 1734 of 1922 is an authority. The judgment of the Subordinate Judge is undoubtedly a decision on the merits. He finds that the Lower Court was right in refusing the adjournment, that it was right in dismissing the suit as there was no evidence on the plaintiff's side to prove his case, that the materials on record did not permit of the granting to the plaintiff of any relief and that the appeal has to be dealt with upon the materials on record only.
2. In my view the case falls under Order 17, Rule 3, as pointed out by me in Visvanatha Asari v. Sami Asari (1933) M.W.N. 803. It seems to me that in this view the question as to the appearance of the plaintiff is beside the mark. As pointed out by the learned authors of the Civil Procedure Code, Woodroffe and Matthew in their commentary on the section, the words 'Notwithstanding such default' in the rule clearly imply that the Court is to proceed with the disposal of the suit in spite of the default upon such materials as are before it. If in the case of a plaintiff such materials fail to substantiate the claim, the suit will be dismissed for this reason and not for default. It therefore seems to me that the judgment of the Lower Appellate Court is perfectly right and the Second Appeal must be dismissed with costs.