The main legal point established in the judgment is the interpretation of the provisions of Order 17 Rule 3 C.P.C. and the definition of 'decree' under Section 2(2) of C.P.C. in determining the maintainability of an appeal under Section 96 of C.P.C.

1. This appeal suit has been filed by the appellant / plaintiff against the judgment and decree, dated 06.10.2016, passed in O.S.No.113 of 2015 by the learned District Judge, Kanyakumari District at Nagercoil.

2. For better appreciation, the rank mentioned in the Court below are taken up.

3. The brief facts which are necessary to decide this appeal are as follows :

The plaintiff is the son of the 1st defendant and brother of the 2nd and 3rd defendants. The 4th defendant is the daughter of the 2nd defendant. According to the plaintiff, the plaint schedule properties originally belonged to his father and after his death, the plaintiff and the defendants 1 to 3 have been enjoying the same as joint owners. While so, the defendants 1 and 2 attempted to alienate item No.1 of the plaint schedule property through forged documents. Hence, he has filed the suit for partition of the plaint schedule properties, declaration of the Will and Settlement deed as null and void, and for permanent injunction restraining the defendants 1, 2 and 4 from alienating the suit properties. At the time of filing the suit, the plaintiff has failed to state the correct address of the 3rd defendant, who was in abroad and therefore, notice could not be served. After getting information about the correct address of the 3rd defendant, the plaintiff has filed an application in I.A.No.327 of 2016 for amendment of the address mentioned about the 3rd defendant in the plaint. The Court below has dismissed the suit itself stating that the plaintiff is wasting the valuable time of the Court by abusing and unfair means, against which the present appeal has been filed by the plaintiff.

4. The learned counsel appearing for the plaintiff would submit that as the plaintiff did not state the correct address of the 3rd defendant in the plaint, he had filed an amendment petition, but the trial Court, without deciding the said amendment petition, has erroneously dismissed the suit itself for non prosecution, without any valid reason. Relying upon Order 17 Rule 3 C.P.C., he would further submit that as the trial Court dismissed the suit while the learned counsel for the plaintiff was physically present, the dismissal of the suit can be taken as on merits and hence, the appeal lies. He would further submit that in case, this Court dismisses the appeal on the ground of maintainability, the appellant / plaintiff may be given liberty to file restoration application before the trial Court with an observation to exclude the period spent in this appeal.

5. The learned counsel appearing for the respondents 1, 2 and 4 would submit that the plaintiff has filed the vexatious suit, in order to harass, his own mother, who is an octogenarian and close relatives, and he wantonly dragged the matter endlessly by furnishing the false address of the 3rd defendant in the suit to make sure that the summon is not served to the 3rd defendant. He would further submit that as the plaintiff has been adopting dilatory tactics, the trial Court on 06.09.2016 has specifically directed the plaintiff to take steps to the correct address of the 3rd defendant, which was furnished by the respondents 1, 2 and 4 in the earlier hearings. Inspite of the same, the appellant / plaintiff, once again, took summons to the wrong address wantonly in order to delay the proceedings and subsequently, took out an amendment application in order to amend the address of the 3rd defendant. In the said application also, the plaintiff has wantonly furnished the wrong address, inspite of knowing the correct address and hence, the trial Court has dismissed the suit for non prosecution. He would further submit that instead of filing an application for restoration of the suit under Order 9 Rule 9 C.P.C., the appellant / plaintiff has wantonly filed the present appeal under Section 96 C.P.C. which is not maintainable. Thus, he prayed for dismissal of the appeal.

6. The issue to be decided in this appeal is:

Whether the present appeal