Dismissal of suit not on merits.

PADMANABHAN, J. :- This original side appeal has been filed against the judgment of a learned single Judge by which he dismissed Appln. No. 1165 of 1981 which is filed by the appellant-plaintiff for setting aside the dismissal of C. S.246 of 1973 in the following circumstances. The plaintiff's suit was taken up for trial on 26-11-1979. On that day, the plaintiff applied for time on the ground that he had to obtain certain documents. The adjournment was refused Nainar Sundaram, J. On the very same day, the learned Judge dismissed the suit. While dismissing the suit the learned Judge observed that the plaintiff has declined to lead evidence and prosecute the suit on the ground that he had to get documents from other sources. Further, the learned Judge observed that the plaintiff had to discharge his burden of proof so as to enable the court to consider the grant of reliefs prayed for by him and the plaintiff was not prepared to produce his evidence to substantiate his case. The learned Judge also was conscious that there was no material placed before the Court for considering the case of the plaintiff at all. With these observations the learned Judge said "In the said circumstances, this Court has no other alternative but to negative the reliefs prayed for in the suit for want of substantiation of the plaintiff's case and lack of evidence. Hence the suit is dismissed under Order 17, Rule 3 (a), C. P. C. but I make no order as to costs."

2. The plaintiff then filed I. A. No. 1165 of 1981 for restoration of the suit. Shanmukhan, J. dismissed the said application. Before the learned Judge, a preliminary objection was taken by the first respondent that the dismissal of the suit by Nainar Sundaram, J. on 26-11-1979 was a dismissal on the merits and hence the plaintiff's remedy would be to file an appeal against the said judgment and an application for restoration of the suit would not be maintainable. The learned Judge held that since the order of dismissal of the suit was on the merits under Order 17, Rule 3 (a), C. P. C., the remedy of the plaintiff would be to file an appeal and not an application for restoration. Accordingly, the learned judge dismissed the application by his order dated 10-8-1981, and hence this O. S. appeal by the plaintiff.

3. The plaintiff who appeared in person submitted that the order passed by Nainar Sundaram J. was essentially a dismissal for non-prosecution. He argued that the learned judge himself had refused the adjournment prayed for by the plaintiff and had noted that the plaintiff refused to prosecute the suit by letting in evidence. Consequently, the dismissal of the suit would be deemed to be essentially for non-prosecution on the part of the plaintiff. The plaintiff further referred to Order 20, Rule 5-A, C. P. C. which has been introduced by the Amending Act 1976, to the effect that when a party appears in person it is the duty of the Court while delivering judgment to put in writing that the party has a right of appeal specifying the Court in which the appeal would lie and also the period of limitation therefor. According to the plaintiff the learned Judge must be presumed to be aware of Order 20, Rule 5-A, C. P. C. and inasmuch as the learned Judge had not recorded in writing that an appeal would lie from that order and had not stated the time within which such an appeal could be filed, the learned Judge himself thought that he was dismissing the case for non-prosecution and that no appeal would lie from that order.

4. At our request Mr. K.N. Balasubramaniam, advanced arguments on the question whether the only remedy of the plaintiff was to file an appeal against the dismissal of the suit by Nainar Sundaram J. or an application for restoration of the suit would be maintainable. Mr. K.N. Balasubramaniam argued that Order 17, Rule 3 (a), C. P. C. could be invoked only where there is already some material on record to enable the Court to adjudicate upon the issue arising for consideration i