1. The plaintiffs in O.S. 368 of 1955 on the file of the Munsiffs Court, Ernakulam, whose petition I.A. 299/59 for restoration of the suit dismissed for default had been dismissed, has filed this revision petition. The suit was based on a promissory note executed by the defendant to deceased Mannulli Chacko Joseph whose wife and minor children are the plaintiffs. The suit had undergone a number of adjournments. The defendant had been declared exparte and the plaintiff had only to prove the claim and produce the succession certificate for which application had already been made and was pending in the same Munsiffs Court.

2. While the suit was posted for final hearing on 23-1-1959, the plaintiff again applied for adjournment. It was refused and suit was dismissed for default. Application for restoration of the suit was made by the plaintiff and that was also dismissed, and the revision petition has been filed against the aforesaid order.

3. The learned Munsiff besides stating that there was no excuse for not being ready for the suit which had already been adjourned for a number of times has also observed that the petition is even otherwise, not maintainable. Probably what the learned Munsiff had in mind even though not expressed is that the dismissal of the suit being one under 0.17, R.3, a dismissal on the merits for want of evidence, the remedy was only by way of appeal. So the short point for decision in this petition is whether the dismissal for default was under R.2 or R.3 of 0.17.

4. It is contended that 0.17, R.2, would apply only where there is a default of appearance on the part of the plaintiff. That is so, but in B. M. Venkatappa Navanum v. Padi Ramakrishnappa Chetty (AIR 1917 Mad. 196) following the decision in Gopala Row v. Maris Susava Pillai (1907) 30 Mad. 274, it was held in circumstances substantially similar to the present case that there was no appearance of the plaintiff. In those cases the Pleader for the plaintiff asked for adjournment of the suit and when it was refused stated to the court that he was not willing to proceed with the case and it was held that it could not be said that there was appearance of the plaintiff in the suit. The plaintiff though physically present in court did not take part in the proceedings after the adjournment was refused and therefore could not be said to have been present there as plaintiff partaking in the proceedings. Mere physical presence in Court cannot be taken cognizance of and in effect that is non appearance at the hearing. If that is so it would be a case coming under R.2 of 0.17 which provides that on a party failing to appear, the court may proceed to dispose of the suit, which the court has done by dismissing the suit. That is what has happended in this case also and following the view expressed above the dismissal must be taken to be one under 0.9, R.8, for want of appearance and an application could be filed under 0.9, R.9.

5. Again it cannot be said in this case that the Court granted time at the request of the plaintiff for the doing of any particular thing. The notes paper does not make this clear. The hearing of the suit had been adjourned under 0.15, R.3 for production of evidence by the parties and I do not think a general adjournment of that kind can be said to be an order bringing into operation 0.17, R.3. Where the court itself adjourns the case for production of the evidence by parties quite generally without reference to anything in particular to be done by any one of the parties to the suit, R.3 of 0.17 will not be applicable. Therefore, the learned Munsiff was bound either to dispose of the matter under 0.9 or else to grant an adjournment. It was not open to him to act under 0.17, R.3. The power conferred on the court under 0.17, R.3 is a very drastic power and it restricts very greatly the unsuccessful partys remedy for redress and should be used only in exceptional cases. This is, therefore, an eminently fit case for interference.

6. The fact that the learned Munsiff had taken a wrong view of the provisions of the law applicable to the order which he made would not deprive this court from going into the question as to what is the correct provision of law under which the order had really been made. I hold that his order really comes under 0.17, R.2. The application for restoration of the suit ought, therefore, to have been entertained. On the merits, I feel, sufficient cause has been shown for setting aside the order of dismissal of the suit. The plaintiff could not get ready for the hearing of the suit for no fault of theirs and it would be hard if they are not given a chance to prove the succession certificate and get a decree. The order of the learned Munsiff is set aside. He will now restore the suit to its original number and proceed with the suit. The revision petition is allowed. There will be no order as to costs.

Allowed.