Jurisdiction of appellate Court to treat the order of dismissal passed u/rule 2.

The plaintiff is the appellant in these two appeals. He instituted suits O.S. Nos. 512 and 513 of 1947 in the District Munsif’s Court, Pattukottai, to set aside a decree dated 7th March, 1946, passed in in M.A. No. 151 of 1946 on the file of the Deputy Collector’s Court, Pattukottai, on the ground of alleged fraud in service by the Revenue Inspector. These suits were transferred from the file of the District Munsif’s Court, Pattukottai, to the District Munsif’s Court, Mannargudi, on the grounds of administrative convenience by the District Judge, West Tanjore, and were numbered O.S. Nos. 38 and 39 of 1949 respectively. The suits were contested.

When the suits were taken up for hearing on the 15th March, 1949, the plaintiff presented an application I.A. No. 160 of 1949, for an adjournment. By an order passed by the learned District Munsif, the adjournment was refused on the ground that it was bereft of bona fides and the petition for adjournment was dismissed with costs and when the suits were taken up, the pleader for the plaintiff stated that the plaintiff was not prepared and refused to proceed with the case or adduce evidence or even examine himself, as the request for adjournment had been refused, and therefore, the suits were dismissed. While dismissing the suits, the learned District Munsif observed that he was dismissing the suits under Order 17, rule 3, Civil Procedure Code.

The plaintiff’ appealed and the learned District Judge of West Tanjore found that no appeal lay against the order of the District Munsif, dismissing the suits, as the suits were actually dismissed for default, the order really being ope under Order 17, rule 2, and not being one under Order 17, rule 3, Civil Procedure Code.

The view taken by the learned District Judge appears to be correct, in view of the terms of rules 2 and 3 of Order 17. Notwithstanding the observations of the learned District Munsif that the dismissal of the suits was under Order 17, rule 3, it was really a case of dismissal under Order 17, rule 2. The fact remains that the plaintiff, though physically present in Court, refused to take part in the proceedings after the dismissal of I.A. No. 160 of 1949 for adjournment, as represented by his counsel, and, therefore, he could not be said to have been present there as plaintiff partaking in the proceedings. His physical presence in the Court cannot be taken cognizance of, and the only conclusion that one can come to is that he did not appear at the hearing. This case therefore comes under Order 17, rule 2, which provides that on a party failing to appear, the Court may proceed to dispose of the suit, which the District Munsif had done in this case by dismissing the suits. There is no discussion of the merits of the case nor was any finding given on the merits, notwithstanding the physical presence of the plaintiff in Court, even about which, it may be mentioned there is nothing to show that he continued to be present in Court after the dismissal of his application for adjournment.

Mr. Jagadisa Ayyar sought to support his argument on the observation of the learned District Munsif that the dismissal was under Order 17, rule 3 and urged that the order of dismissal being stated to have been one under Order 17, rule 3, even if the learned District Munsif had acted erroneously under an appealable provision of law, once such an order is passed, the right of appeal available to the plaintiff cannot be taken away. In support of this contention he relied on a decision in Somasundaramma v. Seshagiri Rao1 and the observations of Wadsworth, J., in that case, where the learned Judges followed a decision in Muthiah Chettiar v. Govinddoss Krishnadoss2. The observations relied on are as follows:-

“It was held in Muthiah Chettiar v. Govinddoss Krishanadoss2, following a considerable line of authority, that when the Court wrongly acts under an appealable provision of law and passes an order, having regard to the provision of law under which it is