ORDER

1. This first appeal has been filed challenging the judgment and decree dated 17.12.2021 passed by the Fourth District Judge, Sagar in R.C.S.A./3900010/2016, whereby learned trial Court has dismissed the suit for want of evidence of the plaintiff. Learned counsel for the appellant submits that although the learned Court has passed the order dismissing the suit in the form of judgment and decree but perusal of it, shows that, learned Court has not considered any evidence and has not decided the matter on merits and ultimately has dismissed the suit for want of evidence of the plaintiff. Accordingly, he submits that such dismissal of suit comes within the purview of Order 17 rule 2 of CPC and not under Order 17 rule 3 of CPC. He submits that because of passing of judgment and decree, he has preferred first appeal but in fact he has remedy to challenge the same by way of application under Order 9 rule 9 of CPC accordingly, he prays for permission and liberty to file application under Order 9 rule 9 of CPC before the same Court.

2. Heard learned counsel for the appellant and perused the impugned judgment and decree along with other order-sheets submitted by the appellant/plaintiff