The trial court erred in dismissing the suit for want of prosecution without considering the explanation offered by the plaintiff for the delay.

G. RADHAKRISHNA RAO, J.

( 1 ) ON the ground that even though the matter has been adjourned from time to time for adducing evidence and as they have not co-operated, the learned subordinate Judge has passed the following order:"the plaintiff is not ready to proceed with suit although the date is fixed finally for the evidence of the plaintiff. The learned Counsel Sri. Umesh represent the learned Counsel of the plaintiff and requests time. Having regard to the facts and circumstances of the case/ which is pending since 1984, I am of opinion that there is no justification in going on adjourning the case from time to time. Suit is therefore dismissed. No costs/"

( 2 ) THIS was stated to have been passed in the presence of Sri. Umeshtari, Sri b. K. Seshu, Advocate for the plaintiff and Sri K. R. Raman, Advocate for defendants. Immediately thereafter, an application has been filed under Order 9 Rule 9 CPC to set aside the order. That application was disposed of by the lower Court holding that the petitioner has to prefer an appeal against the order passed by the Court. We have perused the order. Original order, itself, ex-facie, has to be set aside, within one minute. It is a case where the suit has been filed on the basis of a promissory note, admittedly, executed by the party concerned. It is also a case where, at the subsequent stage, amendment petition has been filed and the same was allowed in part and that amendment order has been carried upto the Supreme Court. After the disposal by the Supreme Court and after finality about the amendment order, the suit has come up for further evidence. When the plaintiff was not ready, the learned Judge should have closed the evidence on behalf of the plaintiff and posted the matter for the defendents evidence. In a case like this, the hasty action, as exhibited by the original authority in passing the order, clearly demonstrates that he has not applied his mind duly taking into account the provisions of the CPC. Where the matter has to be decided, ex parte or where the plaintiff s evidence was closed, when many options were available under the CFC, the option less injurious to the parties concerned, has to be taken into consideration and the extreme step of dismissing the suit, should not have been resorted to, normally, by the Court;. Even subsequently, when the matter has come up before another Judge who is also not in service now, even though, it was brought to his notice the decision reported in 1987 (1) ALT, page 80, he has dismissed the same. The observations of the Court in the reported decision mentioned supra, are as follows:". . . . the test for finding as to whether the remedy under Or. 9 is lost or not is not with reference to issues framed and the findings recorded there on delivering the judgment on merits but the requirements of explanation appended to R. 2 are satisfied or not treating the absenting party as present. Hence when an application is filed by anabsenting or defaulting party to set aside an order or decree passed in his absence, the court must see whether the explanation is properly invoked against him and if the requirements of the explanation, viz. , adducing of evidence or a substantial portion of evidence by him isnot satisfied it must be held that the fiction is wrongly invoked against him and it must be treated that the order was passed in his absence and the same must be deemed to have been passed ex-parte under Rule 2 of Order 17 and consequently the remedy under Or. 9 is not lost. "

( 3 ) THE nature of the case, the matter that has been posted after adjournments, the affidavit that has been filed by the advocate and the order that has been passed, clearly indicates that it is a case where Order 9 Rule 9 CPC has to be applied, and it is not a case where Order 17 Rule 2 CPC can be taken aid of and contend that an appeal ought to have been filed. It is a case where the plaintiff s and defendants evidence is available and the issues are there. When the eviden

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