JUDGMENT

M.C. Desai, J. - On an adjourned date the Appellant, who was the Plaintiff in a suit for injunction, was absent and the trial court dismissed the suit. It mentioned that the claim of the Appellant had been denied by the Defendant Respondent, that the Appellant had tailed to produce any evidence to substantiate his claim and that consequently it was dismissed "On merits u/O. XVII R. 3 CPC". The Appellant instead of applying for restoration of the suit u/O. IX went up in appeal and the appellate court dismissed the appeal, being of the view that the order of the trial court was correct.

2. What I could understand from the argument advanced on behalf of the Appellant is that the trial court should have dismissed the suit u/O. IX and not "on merits u/O. XVII R. 3 CPC". No appeal lies against an order dismissing a suit in default but when a suit is dismissed on merits, whether u/O. XVII, R. 2 or u/R. 3, an appeal does lie. If the order of dismissal passed by the trial court was correctly u/R.3 and was, therefore, appealable the Appellant could not succeed because then he could not claim that the dismissal should have been u/O. IX, and the suit would have been found rightly dismissed for want of evidence. If the dismissal by the trial court was really u/R. 2 read with O. IX, no appeal could lie. Therefore in either case the appeal was doomed to fail.

3. The trial court was certainly wrong in dismissing the suit on merits u/R. 3, instead of in default u/R. 2. this Court has amended R. 2, but the amended provision does not seem to have been brought to the trial court. If the Appellant's evidence or a substantial portion of it had been recorded before his absence, the trial court could proceed with the suit in spite of his absence. The amendment was made by this Court with a view to allow a suit to be decreed u/R, 2 in, spite of the absence of the Plaintiff. When the Plaintiff's evidence or a substantial portion of it has not been recorded and he is absent, the suit should be dismissed in default u/R. 2 and there would arise no question of the court's proceeding to dispose of it u/R. 3. A suit can be dismissed on merits when the Plaintiff, on whom lies the onus of establishing his claim, does not produce evidence to discharge the onus or produces evidence but it is found by the court to be insufficient or unworthy of belief; but if he absents himself before he closes his case, the suit cannot be dismissed on merits. If it is dismissed, it must be only in default u/R 2. In the present case it was undoubtedly an adjourned date on which the suit was dismissed. R. 2 gives discretion to a court either to proceed u/O. IX or to make such other order as it thinks fit when the parties, or any of them, fail to appear on the adjourned date Different circumstances prevailing on the adjourned date require different considerations and what would be a proper order in one circumstance may not be a proper order in another circumstance; that is why discretion has been left to the trial court. There may be circumstances justifying the suit being decreed in spite of the absence of the Plaintiff; if the court were required to proceed only u/O. IX, it would have been obliged to dismiss the, suit despite its being fit to be decreed. Consequently the court has been given power to pass a decree as any other order, as it thinks fit. If the initial onus lies upon the Defendant (on account of a legal presumption in favour of the Plaintiff) it would be unjust to dismiss a suit solely on the ground of the Plaintiff's absence. If the Plaintiff has closed his case and is absent on the next date fixed for the Defendant's evidence and the Defendant has got no evidence, it would again be unjust to dismiss the suit on the ground of the Plaintiff's absence. Then there may be circumstances on account of which the court may think that the Plaintiff's absence was for sufficient cause and it would be unjust to dismiss the suit in default. There may not be legal evidence