The defendant of the Title Suit No. 226 of 1966 of the Court of Munsiff No. 1, Silchar impugned the judgment and order dated 27.3.1978 passed by the learned Assistant District Judge No. 2, Silchar in Title Appeal No. 126 of 1973 holding that the appeal was maintainable and setting aside the order dated 23.8.1973 of the Munsiff in Title Suit-No. 226 of 1966. 2. Notice was duly served on the respondent (Plaintiff) but the respondent remained absent and none appears to represent him. 3. The suit was fixed on 23.8.1973 for evidence of the plaintiff's side. The plaintiff was present, but he declined to adduce evidence when he was called upon to do so, and thereupon, the suit was dismissed. The plaintiff-opposite party preferred the appeal against that order of dismissal. The defendant contested the appeal by raising objections that the order dated 23.8.1973 was passed under Order 9 rule 8 and the remedy was under rule 9 and not by way of an appeal. According to the defendant-respondent, the appeal was not maintainable. 4. The main point for consideration before the Assistant District Judge was whether the order of dismissal of the suit was under Order 9 rule 8 or under Order 17 rule 3. The Assistant District Judge by his judgment dated 27.3.1978 held that the order was under Order 17 rule 3 and that the appeal was maintainable, and set aside the order dated 23.8.1973. 5. Perused the order-sheet including the order dated 23.8.1973 passed by the Munsiff in Title Suit No. 226 of 1966. The suit was dismissed on 23.8.1973 not for the reasons of plaintiff's failure to produce evidence or failure to cause attendance of his witnesses, for which he was given time, to bring the dismissal order within the purview of Order 17 rule 3. 23.8.1973 was a fixed date for adducing evidence by the plaintiff. He filed an application to record a compromise on that fixed date. His application was rejected and he was called upon to adduce evidence, but he declined to adduce evidence. The suit was dismissed for plaintiff's declining to adduce evidence. 23.8.1973 was a fixed date for adducing evidence by the plaintiff. He filed an application to record a compromise on that fixed date. His application was rejected and he was called upon to adduce evidence, but he declined to adduce evidence. The suit was dismissed for plaintiff's declining to adduce evidence. Mere physical presence of the plaintiff in the precinct of the Court, after he declined to adduce evidence and non-participation in the proceeding, would not constitute an appearance within the meaning of rule 8 of the Order 9 and, therefore, the order of dismissal dated 23.8.1973 was clearly under Order 9 rule 8 and the remedy was by an application under rule 9 before the Court which passed the order of dismissal. The order dated 23.8 1973 was not an order under Order 17 rule 3 and, therefore, the appeal was not maintainable. The Asstt. District Judge No. 2, Silchar committed error in law in passing the impugned order. 6. This Revision is allowed. The impugned judgment and order dated 27.3.1978 in Title Appeal No. 126 of 1973 are set aside. 7. Send down the records to the lower Court immediately.