ORDER :- This C.R.P. is by defendants 1 and 5 against an order of the Subordinate Judge of Trivandrum remanding for fresh disposal the plaintiffs petition for restoration of the suit under Order 9, Rule 9, C.P.C.

2. The suit was dismissed on 23-3-1957. On 6-4-1957 the plaintiff filed an application in the trial court under Order 9, Rule 9, C.P.C. He has also preferred an appeal before the District Court of Trivandrum from the decree dismissing his suit.

3. The application under Order IX Rule 9 was dismissed by the learned Munsiff on 19-11-1957 on the ground that no such application would lie in the face of the disposal of the suit on merits under Order XVII, Rule 3, C.P.C. The appeal from the decree preferred by the plaintiff was dismissed in the District Court on 5-11-1958. Meanwhile the plaintiff had preferred a Civil Miscellaneous Appeal from the order dismissing his application for restoration of the suit. The learned Subordinate Judge before whom that Civil Miscellaneous Appeal came up for disposal allowed the same by an order dated 6-12-1958 holding that Order XVII, Rule 3 could not apply to the instant case and therefore the dismissal of the suit by the trial Court must be deemed to have been made under Order XVII, Rule 2 only and remitted the petition for investigation on the merits of its contents.

4. The defendants challenge the jurisdiction of the learned Munsiff to hear the restoration application after the appeal from the decree dismissing the suit has been disposed of by the District Court. The contention is that the decree of the trial court dismissing the suit having merged in the appellate decree of the District Court, the trial Court cannot have jurisdiction to set aside the original decree and therefore the remittance of the restoration application for fresh consideration by the learned Munsiff is unwarranted and ought to be vacated. Incidentally they also challenge the correctness of the order of the learned Subordinate Judge to the effect that the disposal of the suit by the trial Court could not be under Order XVII, Rule 3, C.P.C.

5. After the examination of the plaintiff for two days, the suit was posted for his cross-examination on 22-3-1957. That day the defendants applied for an adjournment; it was rejected and the case was adjourned to 23-3-1957 for disposal; and on the latter day the defendants applied for permission to continue the examination of the plaintiff before the case was disposed of but the Court rejected the same and dismissed the suit. In the application for restoration the plaintiff avers that since the court on 22-3-1957 expressed that the defendants application for time would not be allowed he was waiting outside the Court-room, expecting his case to be taken up, till the Court rose for the day; but the case was never called and so he left with the impression that the case had been adjourned for want of time for the court, that he was not aware of its having been taken up for disposal for the next day and so he happened to be absent on 23-3-1957, on which day it was disposed of against him.

The judgment does not purport to proceed on the basis of default of appearance on the part of the plaintiff. All that is said in the judgment is that the plaintiff has not proved his case properly and so the judgment is entered against him. The records in the case show that the plaintiff has deposed to his case, that it was for no fault of his that the defendants did not cross-examine him and that there was no reason why the learned Munsiff should not have acted upon his sworn testimony. The reasoning of the learned Munsiff appears to be rather strange.

6. On the application for restoration, the learned Munsiff has held that the suit has been disposed of, on the merits and not for default of appearance and therefore the application was incompetent. If is evident from the facts stated above that it was not at the instance of the plaintiff that the suit was adjourned for the day it came to be disposed of.

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