K.L Bapna, J.:— This is a revision against an order of the learned District Judge, Kotah, dated the 13th of October, 1950. The non-petitioner Nathulal instituted a suit against Banwarilal petitioner in the court of Munsif, Sultanpur. The plaintiff did not appear on 22nd of November, 1949, which was an adjourned hearing. The court recorded some evidence for the defence and dismissed the suit as if on merits. The plaintiff, however, considered the order to be one under Order XVII Rule 2 read with Order IX Rule 8 of the Civil Procedure Code and presented an application for restoration of the suit on the 23rd of November, 1949. The Munsif rejected the application holding that the suit had been decided on merits under Order XVII Rule 3 of the Code and the remedy was by way of an appeal. On appeal, the learned District Judge was of opinion that the plaintiff had never asked for an adjournment and the proceedings of Order XVII Rule 3 were inapplicable. He held that inspite of the learned Munsif proceeding to decide the case as on merits, it should have been considered to be one as of dismissal for default of appearance and the petition for restoration was properly presented. He remanded the case for decision of the restoration application on merits. The present revision is directed against that order.
2. The case came before a Single Judge of this court and was referred to a Division Bench owing to a difference of opinion as to whether the proper remedy is by way of an application under Order IX Rule 9 of the Code or an appeal against the decision purporting to have been given on merits. 1 or the latter view the leading authority is Ghundan v. Kamakha Rama Chetti(1). The judgment is a brief one and purports to rely on an earlier case reported in Chandramathi Ammal v. C.S Narayanasami Iyer(2). In that case, the plaintiff was absent on an adjourned hearing, but the Munsif proceeded to decide the case on merits.
3. On application by the plaintiff, the suit was restored, but on revision, the High Court held that the disposal of the suit was under Order XVII Rule 3 of the Code and a restoration application was incompetent. In the meanwhile, the plaintiff had also filed an appeal against the decision of the trial court, which was dismissed by the first appellate court, but on second appeal, the Madras High Court held that the Munsif should have dismissed the suit under Order XVII Rule 2 and the decree of the Munsif was reversed and then the disposal of the suit was considered to have been done under Order XVII Rule 2 of the Code. Their Lordships, however, did not consider it necessary to direct the Munsif to pass a fresh order under Order XVII Rule 2 and then to hear the application for restoration. It was conceded that the High Court had ample power under Order XLI Rule 33 to substitute a proper order under Order XVII Rule 2 and Page: 157as the grounds for restoration were also before the court, to further order the restoration of the suit. In Ghundan's case(1), the same round about procedure was recommended to be followed by the plaintiff, but it does not seem to have been kept in mind that round about process was followed because of the earlier decision in the same case that the restoration application was not competent. With respect to learned Judges the round about procedure adopted in this case does not appeal to us. The decision in Ghundan's case(1) was however followed in Lal Chand v. Kaka Ram(3). This decision again is a very short one and no reasoning is found in it.
4. On the other hand in Rafiq Ahmad v. Mohammad Shafi(4), where the court did not specify whether it was acting under Order XVII Rule 3 and the facts justified only an order under O. XVII r. 2 of the Code, it was held that the dismissal of the suit must be deemed to be under O. IX r. 8 and the plaintiffs could treat the dismissal accordingly and file an application for restoration under O. IX r. 9 of the Code. Again in Uppalapati Venkataratnam v. Uppalapali Apparao(5), it was held that where the court should have proceeded under O. XVII r. 2, but purports to pass an order under O. XVII r. 3, and dismissed the suit, the plaintiff has two remedies open to him. He can either appeal against the decree dismissing the suit on the merits, taking the decision as it appeared on record or to proceed under O. IX r. 9 and construing the order as one under O. IX r. 8 of the Code which could have been passed in the case. The view taken in the Madras case seems to be justified as would appear from a reference to a few cases in which the remedy was not granted to the plaintiff because the court was of opinion that he should have availed of other remedy. The view taken in Venkataratnam's case(5) would avoid uncertainty and the dilemma in which the plaintiff would always find himself acting one way or the other according to the advice tendered to him. In Isaka Venkatareddi v. Vemireddi Rangareddi(6), the plaintiff filed an appeal against the decision purporting to have been given under O. XVII r. 3 of the Code. It was held that the proper remedy was by an application under O. IX r. 9 and not by way of an appeal. In Sitalprasad Kalka Prasad v. Sukya(7), the court held that once the lower court had proceeded under Order XVII Rule 3 of the Civil Procedure Code and passed rightly for wrongly, a decree the only remedy of the party is to appeal against that decree and that an application for restoration was incompetent.
5. In our opinion the provisions of O. IX r. 8 are mandatory and, therefore, if a party considers the order to be one under O. XVII r. 2 read with O. IX r. 8, he would be justified in that attitude for the law does not give any discretion to the court in cases covered by O. IX r. 8 of the Code. At the same time if the plaintiff treats the decision as it appears on the face of it and does not wish to take any risk and prefers an appeal it would also be entertainable for the mistake if any is of the court. The appellate court would have in our opinion authority to set aside the decree if there were sufficient ground on which a restoration could be granted under O. IX r. 9 of the Code.
6. The lower court in the present case has rightly construed the decision of the trial court that it amounted only to a dismissal of suit for default and the order of the lower court in holding that the application for restoration presented by the plaintiff was maintainable is correct.
7. This revision has, therefore, no force and is dismissed. No order as to costs.