The main legal point established in the judgment is the interpretation and application of the provisions of Order XVII R.2 and R.3 of the Code of Civil Procedure as amended by the C.P.C. Amendment Act, 1976, and the entitlement of the appellant to seek restoration of the suit under the provisions of Order IX C.P.C.

1. Appellant herein filed the suit against the respondents. The suit was dismissed on 7-4-1982. Appellant filed I A. 465 of 1982 to restore the suit under Order IX R.9 C.P.C. The court below dismissed the application holding that the dismissal of the suit was not under Order IX R.8 C.P.C. and hence it could not be restored under Order IX R.9 C.P.C. This judgment is now challenged.

2. It appears the suit O.S. 77/80 concerned in this case and another suit, O.S. 17/82, were tried jointly and purportedly disposed of on merits. The decree and judgment in O.S. 17/82 have been confirmed in A.S. No 65/82 of the District Court, Thodupuzha.

3. Evidence was being recorded in O.S. 77/80. The case was posted for trial to 1-4-1982. on that day plaintiff was not ready. Adjournment application filed on behalf of the plaintiff was dismissed. Plaintiff d d not adduce evidence on that day. Evidence on behalf of the defendants was adduced on that day and succeeding days. Arguments were heard on 5-4-1982 and suit dismissed on 7-4-1982. There is no doubt that the dismissal purports to be on merits. Learned counsel for the appellant would contend that even though the dismissal purported to be on merits, in law it has to be treated as dismissal under Order XVII R.2 and can be set aside under Order IX R.9 C.P C. Learned counsel would further contend that the dismissal was not under Order XVII R.3 C.P.C.

4. The provisions of R.2 and 3 of Order XVII C.P.C. have undergone change by virtue of the Code of Civil Procedure (Amendment) Act, 1976. The rules in the present from read as follows:

"2. Procedure if parties fail to appear on day fixed

Where, on any day 10 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 the model directed in that behalf by Order IX to make such other order as it thinks fit,

Explanation-Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the court may, in in discretion, proceed with the case as if such party were present.

3. Court may proceed notwithstanding either party fails to produce evidence, etc,

Where any party to a suit to whom time has been granted 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, the court may, notwithstanding such default,

(a) if the parties are present, proceed to decide the suit forthwith; or

(b) if the parties are, or any of them is, absent, proceed under R.2".

5. A division bench of this court had occasion to interpret this rule in M.V. George v. S.M.S. Traders (1980 K L.T. 307). The court observed:

"Order 17 R.2 and 0.17 R.3 of the Code of Civil Procedure as they stand after the Civil Procedure Code Amendment Act, 104 of 1976 are materially different from the corresponding provisions as they stood prior to the amendment. 0.17 R.3 contemplated a judgment on the merits. But a judgment does not become a judgment on the merits falling under 0.17 R.3 merely because the judgment purports to be on the merits. The court may have, in the judgment discussed the issues in the case, considered the evidence and decided the case on the merits. But nevertheless it will not be a disposal under 0.17 R.3 if the pre-requisite for application of the rule is not satisfied. The party to whom time has been granted must be in default. If the case comes up not after grant of such time to the party. 0.17 R.3 will have no application. The disposal will then be under 0.17 R.2 though it purports to be one on the merits. In such a case a defendant notwithstanding the purported disposal on the merits could seek to reopen the decree by an application under 0.9 R.13 of the C.P.C".

The court noticed the explanation added to 0.17 R.2 as well as the changes in R.3 and observed:

"Pr