Gopal Gounder vs Ambujammal

T. Ramaprasada Rao, J.—The short facts in this case are that on 6th October, 1964, the plaintiff as P.W. 1 examined herself and marked

certain documents. She however entertained certain apprehensions in her mind that she should not obtain a fair trial in the Court in which her suit

was pending. Therefore on 7th October, 1964, she filed a petition for transfer of the suit. This was opposed. The petition was dismissed, and in

such circumstances the plaintiff''s Counsel reported ""no instructions"" but the plaintiff, however, appears to have been present in Court. The learned

District Munsif, however, dismissed the suit. The question now for consideration is whether such dismissal by the learned District Munsif would

enable the plaintiff to take it up in appeal as an appealable order or whether she should have filed an application under Order 9, Rule 9, CPC for

setting aside the ex parte dismissal. Learned Counsel for the petitioner invited my attention to a decision in Natesa Thevar Vs. Vairavan

Servaigaran, . There the plaintiff though physically present did not want to take part in the proceedings after the dismissal of his application for

adjournment. Attention has been drawn by the learned Counsel for the respondents to a Bench decision of this Court in Dakshinamoorthi Kandar

Vs. Ponnuswami alias Karuppa Kandar and Others, There the plaintiff appeared at the adjourned hearing of the suit without being represented by

his Pleader who had retired, from the case and filed an application for adjournment but the Court insisted that the plaintiff should examine himself

and on his refusal to do so dismissed the suit. The learned Judges held that in such circumstances, the plaintiff appeared at the hearing of the suit

and the dismissal of the suit could only be in the circumstances under Order 17, Rule 3, Civil Procedure Code. In this case, the plaintiff''s Counsel

reported no instructions because the application for transfer on the ground that the plaintiff cannot secure a fair trial was dismissed. The plaintiff

was however in Court. Apparently she ought to have been directed to proceed with the case and the plaintiff ought to have pleaded helplessness in

such circumstances, and the learned District Munsif dismissed the suit. I am bound by the decision of the Division Bench reported in

Dakshinamoorthi Kandar Vs. Ponnuswami alias Karuppa Kandar and Others, , and in those circumstances I am unable to agree with the view

taken by Krishnaswami Nayudu, J., in Natesa Thevar Vs. Vairavan Servaigaran, . I hold that the plaintiff should be deemed to have appeared on

the date when the suit was dismissed and if the plaintiff did appear within the meaning of ratio of Natesa Thevar Vs. Vairavan Servaigaran, , then

the disposal must be deemed to be one under Order 17, Rule 3, Civil Procedure Code. It is not disputed by the learned Counsel for the petitioner

that if the disposal were to be held to be one under Order 17, Rule 3, CPC an appeal will lie.

In the appeal so filed by the plaintiff the learned Subordinate Judge directed the retrial of the case and this appears to be absolutely in the

interests of justice. I do not think that there is any error of jurisdiction in so far as the order complained of is concerned. The Civil Revision Petition

is dismissed. There will be no order as to costs.