M. P. MEHROTRA, J.

( 1 ) THIS petition under Article 226 of the Constitution of India arises out of the proceedings relating to a Civil Suit, It is not necessary to state the facts and controversies which were involved in the Original Suit No. 367 of 1980 which was pending in the court of the Munsif I, rampur. However, the relevant brief facts may be noticed, 13-5-1981 was the date fixed for framing of issues. On the said date the case was called out and it was dismissed with costs by an order dated 13-5-1981, a true copy of which is Annexure 9 to the petition. The order is reproduced below:-" case called. Sri A. R. Siddique Advocate Counsel for the plaintiff pleads that he has no instructions. This case yesterday came before me with an application on behalf of the defendant and it was opposed by the counsel for the plaintiff and as he was not ready case was adjourned for today. The learned counsel, therefore, cannot plead no instructions. There issues have to be framed on the pleadings of the parties but learned counsel for the plaintiff hesitates to cooperate with the Court. It is, therefore, futile to crown a sleeping pig. Since the case was adjourned on the request of learned counsel for plaintiff and not present also when he was asked to help the framing of issues he pleads for dismissal of the suit. I have no hesitation to accept his proposal. Suit is accordingly dismissed with costs. "

( 2 ) THEREAFTER, an application was moved by the plaintiff-respondent No. 5 in this petition purporting to be under Order 9, Rule 9, C. P. C. The prayer was that the order dated 13-5-1981 dismissing the suit, be set aside and the suit be restored. The application was rejected by the trial court by its order dated 29-9-1981, a true copy of which is Annexure 10 to the petition. The plaintiff-respondent No. 5 felt aggrieved and filed an appeal against the said order and the same was allowed by the appellate court by the impugned order dated 3-8-1982, a true copy of which is Annexure 1 to the petition.

( 3 ) FEELING aggrieved against the aforesaid appellate order (Annexure 1 to the petition) the defendant has come up in the instant petition and in support thereof I have heard Sri R. P. Goyal.

( 4 ) SRI Goyal contended that the appellate court was wrong in holding that the order passed by the trial court dismissing the suit on 13-5-1981 was one under Order 9, Rule 8, C. P. C. According to the learned counsel the said order was a judgment on merits and therefore, the only course which was open to the plaintiff, was to file an appeal against the same and no application under Order 9, Rule 9, C. P. C. was maintainable. In this connection, learned counsel emphasised that 13-5-1981 had been fixed for the framing of issues on the request of the learned counsel for the petitioner who, on the preceding day, was not ready and had sought adjournment for the following day. Learned counsel also emphasised that the plaintiffs counsel himself prayed to the court that the suit be dismissed. In this connection, it was emphasised that the counsels authority was still continuing and, therefore, he was entitled to make the said prayer to the court on behalf of his client. Lastly, it was contended that since the plaintiffs counsel was present and had prayed for the dismissal of the suit in view of the authority which he had on behalf of the client, therefore, it could not be treated to be a case of absence of the plaintiff on the date in question. The plaintiff should be deemed to be present through his counsel.

( 5 ) A reference was made to certain case law which is as under:-1. Sewaram Udaji v. Munna Moti, (AIR 1959 Madh pra 5 ). 2. Rajendra Kishore v. District Cooperative Development Federation Ltd. (1965 All LJ 575 ). 3. Ratan Chand Gulati v. Brij Bhushan Lal (1969 All LJ 264 ). 4. Administrator General of West Bengal v. Kumar Purnendu Nath Tagore (AIR 1970 Cal 231 ). 5. M. S. Khalsa v. Chiranji Lal (1976 All LJ 379) ; (AIR 1976 All 290) (FB ).

( 6 ) IN the j

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