- (1.) THIS revision application is directed against the order of the Judge, Small Cause Court, correcting the decree passed in suit No. 156 of 1972 and also against the order of the Additional District Judge affirming the trial Courts order.
(2.) IT appears that the plaintiff-opposite party filed a suit in the court of the Civil Judge, Allahabad, for a declaration that he was owner of the house No. 541, Attarsuiya, Allahabad. The suit was however dismissed with costs under O.XVII, R.3 of the Civil P.C. The plaintiff filed an appeal before the District Judge which was treated as miscellaneous appeal. The Additional District Judge dismissed the plaintiffs appeal. Thereupon the plaintiff filed a revision in this Court which was dismissed by me on 31st July, 1978. Meanwhile the plaintiff had made an application before the trial Court for correction of the decree. The trial Court has allowed that application and directed for the correction of the decree so far as the costs of the suit was concerned. The plaintiff-opposite party made an application before the Civil Judge and contended that dismissal of the suit under O.XVII R.3 was ex parte and as such costs and fees should have been calculated in accordance with R.586 of the General Rules (Civil) applicable to the subordinate Courts. The plaintiffs contention has been upheld by the Civil Judge as well as by the Additional District Judge in revision. R.585 prescribes a scale of rates at which fee is taxable while calculating the costs of the suit in contested cases while Rule 586 prescribes rates for costs in cases decided ex parte. Both the lower courts have proceeded on the assumption that the order of the Civil Judge dismissing plaintiffs suit under O.XVII R.3 was in the nature of an ex parte order and it did not amount to decision of the suit on merits in a contested case. Originally cost had been calculated in accordance with R.585 which is applicable to contested cases but on the plaintiffs application both the courts have held that fee should have been calculated in accordance with the rates prescribed in R.586 which is applicable to calculation of fees in ex parte cases. The question therefore arises as to whether the dismissal of plaintiff suit under O.XVII R.3 would amount to an order on merits in a contested case or it would be in the nature of an ex parte order.
(3.) THERE is no dispute between the parties that the plaintiff-opposite party had filed a suit for declaration of title in respect of the house in dispute. The defendant-applicant filed written statement and contested the suit. Issues were framed and a date for final hearing was fixed. The suit was at one stage dismissed but on the plaintiffs application the ex parte order was set aside and the suit was restored and 19th Jan. 1976, was fixed for final hearing. On that date when the case was called out the plaintiff appeared before the court and after informing the court he went to call his counsel, but thereafter he did not appear. The Civil Judge thereupon dismissed the suit under O.XVII R.3 of the Civil P.C. These facts clearly show that the plaintiff, although present in court, did not produce evidence and he failed to participate in the proceedings. The trial court was, therefore, justified in dismissing the plaintiffs suit under R.3 of O.XVII.;