1. Two points arise for decision in this petition. The first is whether the decree passed by the District Judge of Nellore dismissing O.S. No. 19 of 1937, should be regarded as having been made under Order 17, Rule 3 of the Civil Procedure Code or under Order 17, Rule 2; and the second is whether in any case, the respondent-plaintiff was entitled to make an application to have the decree set aside, or whether his only and proper remedy was not by way of appeal.
2. The revision petition filed by the respondent-plaintiff in connection with the suit had been dismissed by this Court on the 9th April, 1945. Thereafter the suit was posted by the District Judge for further trial on the 16th April, 1945 and then, after two adjournments, on the 23rd April, 1945, a pleader on behalf of the plaintiff informed the Court that the respondent-plaintiff's pleader was ill and had asked him to apply for an adjournment. The adjournment was refused and the pleader then stated that he had instructions from the pleader appearing for the plaintiff to report no instructions. Thereupon the learned District Judge dismissed the suit and stated that he did so under the provisions of Order 17, Rule 3 of the Code. The respondent-plaintiff was himself present when the request for an adjournment was made. Against the decree dismissing the suit, the respondent-plaintiff filed an application under Order 9, Rule 9, to have the decree set aside on the footing that it was an ex parte decree and that he had sufficient cause for his non-appearance. On this application the District Judge, Mr. P.N. Ramaswami--Mr. Azeem had passed the judgment and decree in the suit--held that the judgment passed by his predecessor on 30th April, 1945, although purporting to be a judgment on merits under Order 17, Rule 3, was in fact an order of dismissal for default under Order 17, Rule 2; and holding also that the plaintiff had had reasonable grounds for his non-appearance, he set aside the order of dismissal and directed that the suit should be restored to file and heard on merits. In paragraph 2 of his order the learned District Judge has observed that on the state of the case law so far as this Province is concerned there cannot be any doubt that this judgment purporting to be on merits has to be construed as a dismissal order for default. On this point the view taken by the learned District Judge is undoubtedly correct. It was decided by a Full Bench of this Court in Pichamma v. Sreeramulu (1917) 34 M.L.J. 24 : I.L.R. Mad. 286 that Order 17, Rule 3 applied only to cases where the parties are present. It has, of course, still to be decided on the facts of each case whether the parties were ' present or not.' There is, however, no doubt that on the facts of this case the plaintiff and his pleader must be regarded as having been absent on the 23rd April. The physical presence of the plaintiff when it was represented that his counsel could not go oil with the case and when it was represented that his counsel reported no instructions makes no difference. There is ample authority for this, vide Kaliappa Mudaliar v. Kumaraswami Mudaliar : (1926)51MLJ290 and the cases collected therein. The order made by the District Judge dismissing the suit although purporting to be made under Order 17, Rule 3 must be deemed to have been made under Order 17 Rule 2 and that being so I do not see any sufficient reason in revision to differ from the view taken by the District Judge that the illness of his counsel was a reasonable cause for the non-appearance of the plaintiff.
3. In the course of his argument, learned Counsel for the petitioners has raised for the first time the contention that the application by the respondent-plaintiff should have been dismissed because in any case the procedure adopted by him was misconceived. He argues that as the District Judge said that he had dismissed the suit under Order 17, Rule 3, the respondent-plaintiff should have filed an appeal against the decree and had no right to treat the decree as if it was an ex parte decree and ask that it should be set aside by an application under Order 9, Rule 9. This argument is based on a decision of a Bench of this Court in Chenroyan v. Rama Chetti (1916) 3 L.W. 524. In that case it was stated that the petitioner ought to have followed the course which the plaintiffs had adopted in Chandramathi v. Narayanaswami Tyeri, vie (1909) 19 M.L.J. 760: I.L.R. Mad. 241 that he ought to have appealed against the Munsiff's decree purporting to have been passed on merits under Order 17, Rule 3, of the Civil Procedure Code, instead of treating the decree as an exparte decree and applying to have it set aside. Reference to Chandramathi Ammal v. Narayanaswami Iyer (1909) 19 M.L.J. 760: I.L.R. Mad. 241 shows that in that case it was mentioned that the appellant had previously filed an application to have an ex parte decree set aside, but had ultimately obeyed the direction of the High Court that the proper procedure was for him to file an appeal. I can understand a distinction being drawn between a case in which the Court has expressly stated that it has dismissed the suit under Order 17, Rule 3 and cases where there is no clear indication whether the Court has dismissed the suit under Order 17, Rule 3 or Order 17, Rule 2. No distinction of this kind, however, seems to have governed the decision in Chenroyan v. Rama Chetti. (1916) 3 L.W. 524 On the other hand in Pichamma v. Sreeramulu (1917) 34 M.L.J. 24 : I.L.R. Mad. 286 the case started on an application under Order 9, Rule 9 to have an exparte decree set aside although the decree was one which the District Munsiff himself stated he had passed under Order 17, Rule 3. No objection was taken to the procedure and both the Bench which referred the case and the Full Bench proceeded on the footing that the application was competent. Again in Kaliappa Mudaliar v. Kumaraswami Mudaliar : (1926)51MLJ290 , although, as in Chenroyan v. Rama Chetti (1916) 3 L.W. 524, the order of dismissal was one purporting to have been made under Order 17, Rule 3, no objection was taken to the procedure by way of an application to have the decree set aside as if it had been an ex parte decree. Chenroyan v. Rama Chetti (1916) 3 L.W. 524 was a case decided in the exercise of the Court's revisional jurisdiction and it does not seem to me that it should be taken to have decided more than that in the circumstances of that case the petitioner should file an appeal as he had in effect been directed to do by the lower appellate Court. In that view this petition fails and is dismissed with costs.