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 dismis