- (1.) THIS is an appeal against an appellate order of the Additional Commissioner, Jaipur dt. 11-10-54, setting aside the order of the trial court dated 2-4-54 and remanding the case back to it for being proceeded with further in accordance with law.
(2.) THIS appeal was heard by the Board on 18-3-55 and the decision of the lower appellate court was upheld. A review application being accepted against this decision on the ground of a mistake or error apparent on the face of the record, this appeal was reheard today. We have heard the learned counsel appearing for the parties and have examined the record as well. Put briefly, the facts of the case are that Shyamlal plaintiff brought a suit against Bhonrilal and others for a declaration and recovery of possession in the court of the Assistant Collector, Jaipur. The issues were settled on 11-2-53 and the case was fixed for 7-4-53 for recording the evidence of the plaintiff. The evidence however could not be recorded on this date because of the absence of the plaintiff's counsel and the case was adjourned to 23-5-53. On this date the defendants failed to appear and the suit was directed to proceed ex-parte against them. The defendants however appeared on a subsequent day and were allowed to participate in the proceedings. On 23-12-53 the defendants again made default in appearance and ex-parte proceedings were again directed against them. The defendants were however again allowed to participate on 3 2-54 when the statements of three witnesses of the plaintiff were recorded. The case was adjourned to 26-3-54 and again to 2-4-54, when it was dismissed in default of the plaintiff. An appeal was filed before the Additional Commissioner on 14-5-54 who allowed the same in view of the fact that the plaintiff had already placed some material before the lower court and hence the lower court should have decided the suit on merits and not dismissed it in default. The defendants have come up in appeal against this order. The main contention raised on behalf of the appellants before us is that as the respondent did not apply for restoration of his suit under rule 21 of the rules framed under sec. 8 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, he had no remedy by way of appeal. Reliance has been placed in this connection on words "except on merits, no appeal shall lie against the dismissal of the suit under-sub-rule 1 or 2" appearing in Rule 21 (3 ). The position has now under-gone a meterial change with the enforcement of the Rajasthan Tenancy Act, 1955 on 15-10-1955. The provisions of the Civil Procedure Code, 1908, with certain modifications have been made applicable to all suit and proceedings under this Act. As laid down in Sec. 206 of the Act, "all suits, case, appeals, applications, references and proceedings relating to matters dealt with in this Act, shall be deemed to have been commenced under this Act and shall be tried, heard, and determined in the manner, prescribed by or under this Act. "as laid down in Order 17, Rule 2 C. P. C. where on any day to which the hearing of the suit is adjourned the parties or any of them fail to appear the court, may proceed to dispose of the suit in one of modes directed in that behalf by Order 9 or make such order as it thinks fit. The words "make such order as it thinks fit" were examined by the Supreme Court in AIR 1955 S. C. 425 and it was observed that "the court has a discretion which it must exercise. " As observed in AIR 1916 Madras 897 (1), "the word being "may" and not "shall" entails on the court the exercise of some discretion and this discretion must be judicial discretion. When a plaintiff has closed his cas"e and there is evidence which if unrebutted will prove his case, it can hardly be deemed a judicial exercise of discretion to dismiss the suit for default because the defendant and his witness could not be examined. In AIR 1934 Lahore 56, it was observed that "order 17 Rule 2 C. P. C. gave a discretion to a trial court either to proceed under Order 9 Rule 8 or to make such order as it thinks fit. " This question was also examined by a Division Bench of the Rajasthan High court in 1954 RLW 230 and it was observed that there is however a concensus of opinion among the High Courts in India that if there is a default in appearance of a party coupled with the default in compliance of the act referred to in the rule the court will be justified in applying Order 17 Rule 3 C. P. C. if there are materials on record on which to decide the suit forthwith. " In this case, decided by the Rajasthan High Court, the dismissal was held to be under Order l7 Rule 2 and not under Order 17, Rule 3 C. P. C. , as there was on material to give judgment on merits, although in the order of the trial court Orderl7 Rule 3 C. P. C. was expressly referred to. Under Sec. 17 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 every order passed in any suit specified in the first and second schedules was made appealable. Considering all the circumstances of the case, therefore, we agree with the respondent's counsel that the appeal before the lower appellate court was competent and that the decision of that court is perfectly correct and calls for no interference. The appeal is hereby rejected. .;