Full Judgment
1. The shorts 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 would 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 Munsiff, 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 Or. 9, Rule 9, C. P. Code for setting aside the ex parte dismissal. Learned counsel for the petitioner invited my attention to a decision in Natesa Thevar v. Vairavan Servaigaran, : AIR1955 Mad258 . 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 respondent to a Bench decision of this court in Dakshinamoorthi v. Ponnusami. AIR 1949 Mad 78. 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 13, C. P. 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 AIR 1949 Mad 78, and in those circumstances, I am unable to agree with the view taken by Krishnaswami Nayudu J. in : AIR1955 Mad258 . 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 AIR 1949 Mad 78, then the disposal must be deemed to be one under Or. 17, rule 3 C.P.C. It is not disputed by the learned counsel for the petitioner that if the disposal were to be held to be one under Or. 17, rule 3 C.P.C. an appeal will lie.
(2) 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.