A court cannot dismiss a suit on merits based solely on the ex parte evidence of the defendants if no evidence had been recorded before the default of appearance. The court should exercise its judicial discretion and consider adjourning the case or dismissing it under Order 9, Rule 8 C.P.C. instead of proceeding with the hearing in the plaintiff's absence.

Judgement

JUDGMENT :- The plaintiff in Title Suit No. 50 of 1967 has preferred this appeal against the judgment of the court below confirming the decision of the trial court dismissing the plaintiff s suit.

2. The suit was for issuing a permanent injunction restraining the defendants from entering upon the suit property described in the schedule attached to the plaint and also from interfering in any manner with the possession of the plaintiff over the suit property.

3. In view of the question involved and the decision I am going to take in this appeal it is not necessary for me to deal with the respective cases of both the parties.

4. The suit was posted for hearing on 18-9-72. On one or two previous dates the court had adjourned the hearing of the case on the petition of the plaintiff, but on those dates some documents on behalf of the defendants were filed and were marked as exhibits as formal proof thereof was dispensed with. On 18-9-72 the advocate for the plaintiff applied for time on the ground of illness of the plaintiff. The petition to that effect was supported by a medical certificate. Some of the defendants witnesses were present on that date. The court dismissed the above-mentioned petition of the plaintiff by merely saying that it did not deserve any consideration. Thereafter the case was called for hearing when the advocate appearing for the plaintiff filed a memo of no instruction . The court then examined the witnesses produced by the defendants, marked some documents produced by the defendants as exhibits in the case and closed the hearing of the case. On 25-9-72 on a discussion of the evidence on record adduced only on behalf of the defendants it dismissed the suit on merits with costs. The plaintiff filed a petition under Order 9, Rule 9 and Section 151 C. P. C. praying to set aside the aforesaid order of dismissal passed by the court on 25-9-72. On that petition M. J. C. No. 232/72 was registered. Against the judgment and decree passed by the trial court the plaintiff also preferred a first appeal on 30-10-72. The lower appellate court confirmed the findings of the trial court only on the defendants evidence on record and dismissed the appeal with costs. It also rejected the plaintiff s prayer for remanding the case to the trial court for a fresh trial on the ground of the plaintiff s previous laches in the suit. Thereafter M. J. C. No. 232/72 was dismissed as not maintainable.

5. The only question which is raised in this appeal on behalf of the appellant is that in view of the provision of Order 17, Rule 2, C. P. C. the trial court was not legally competent to record the defendants evidence in the absence of the plaintiff, close the hearing of the suit on 18-9-72, and to dismiss the suit on merits on 25-9-72 only on the ex parte evidence of the defendants. Evidently, on 18-9-72 the case was taken up for hearing after rejecting the plaintiff s petition to adjourn the hearing of the case on the ground of his absence from the court due to illness. As the plaintiff on that date did not adduce any evidence, the court closed the recording of the evidence on behalf of the plaintiff, as specifically mentioned in the order of the said date, and after examining the witnesses produced by the defendants and marking some documents produced by them as exhibits it closed the hearing of the case on that date, and delivered its judgment on 25-9-72 on the said evidence. The provisions of Order 17, Rule 2 apply to this case as the plaintiff remained absent from the court on the date of hearing. The court under that Rule was legally competent to dispose of the suit in one of the modes directed in that behalf by Order 9 C.P.C. or to make such other order as it thought fit . The phrase "make such other order as it thinks fit" may bring within its sweep the disposal of a suit on merits without dismissing the same under Order 9 C. P. C. But the observation made in this connection in the decisions of this Court reported in 36 Cut LT 4