Decided on September 10,1952

GATTU Appellant
FAQEERA Respondents


- (1.)THIS is an application for revision by the plaintiff whose suit has been dismissed for default by the learned Munsif, Jaipur West, although the plaintiff was present in flesh and bone in his Court. The learned Munsif says in his order that the plaintiff was present although his vakil was not. Then he proceeds to say that the mere presence of the plaintiff does not amount to his attendance in Court. He, therefore, dismissed the suit on account of the absence of the plaintiff by reason of his non-prosecution of the case. Against this order the plaintiff has filed this revision, and it has been argued by Mr: B. K. Bhargava on his behalf that the learned Munsif could not dismiss the suit for default when the plaintiff was present in his Court. He could at best decide the case on merits under Order XVII, Rule 3, of the Code of Civil Procedure, and pass a decree for dismissal, in which case the plaintiff might have been entitled to file an appeal. Mr. P. C. Bhandari on behalf of the opposite party argues that the suit was dismissed for non-prosecution. There are only two ways of disposing of a civil suit on an adjourned date if plaintiff is not in a position to proceed with it. Either the suit can be dismissed for default under Order XVII, Rule 2, if the plaintiff fails to appear, or under Order XVII, Rule 3, when a plaintiff to whom time has been given is present in Court but fails 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, for which time has been allowed. In the later case, the Court has to pass a decree of dismissal, and cannot dismiss the suit for default. The learned Munsif was not entitled to dismiss the suit for default, because the plaintiff was present in his Court, and he has not passed a decree of dismissal under Order XVII, Rule 3. His order cannot;, therefore, be supported. If the plaintiff was present in court, it was the duty of the learned Munsif to have asked him if he wanted to examine himself or produce any other evidence. If the plaintiff had replied that he neither wanted to examine himself nor had he any evidence to produce, the learned Munsif would have been entitled to pass a decree of dismissal under Order XVII, Rule 3. In the present case, the procedure adopted by the learned Munsif cannot be upheld. He has committed a material irregularity in the exercise of his jurisdiction, and his order is liable to be vacated.
(2.)THE application for revision is allowed, the order of dismissal of the suit is set aside, and the case is sent back to the lower court for decision in accordance with law. THE costs of this revision shall abide the result of this suit after remand. .

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