Judgment :- A. Abdul Gafoor, J. A suit was filed for declaration of title and possession and consequential injunction. The suit was posted for trial on 14.11.1984. The plaintiff was absent But the suit was dismissed considering each and every issue on merit as is seen from the judgment of the trial court. The plaintiff filed a petition under O. IX R.9 as I. A. No. 1590/84. That was dismissed with the following order: "If a considered judgment has been pronounced in this case, this petition is to be dismissed". The order shows that the said petition had been dismissed on the ground of maintainability. The plaintiff thereafter filed an appeal. The appeal was also dismissed. Therefore, this second appeal, mainly raising a substantial question of law whether the trail court was justified in passing a judgment on merit when the plaintiff was absent. 2. It is contended by the appellant that when the plaintiff was absent, the trial court ought to have acted in terms of O. XVII R.2 and should have disposed of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. Admittedly this was a case where no evidence had been adduced. Therefore, the explanation under R.2 of O. XVII did not have any application at all. At the maximum, it could have been stated that the proceedings had reached the stage as envisaged under R.8 where the plaintiff failed to produce evidence, even though the case had been posted for trial in the special list on 14.11.1984. Even in such case, as per clause (b) thereof, the Court had to proceed in terms of R.2 of O. XVII, as the plaintiff was absent. In terms of R.2, the trial court ought to have acted only as provided in that behalf by Order IX, O. IX provides the procedure where any of the parties is absent on the date of posting. In terms of R.2, the trial court ought to have acted only as provided in that behalf by Order IX, O. IX provides the procedure where any of the parties is absent on the date of posting. In R.8 thereof it is provided thus: "Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder." Therefore, what is envisaged in R.8 of O. IX is a simple dismissal of the suit without going into the merit of the case. If the trial court has power to go into the merits of the case even when the plaintiff is absent it is possible even in the absence of the plaintiff to decree the suit. But, the trial court is bound to dismiss the suit under R.8 when the plaintiff is absent. Such dismissal shall thus always be not on merit. Therefore, the trial court went wrong in dismissing the matter on merit. This aspect has not been properly considered by the lower appellate court. So the substantial question of law raised has to be answered in his favour, the appellant contends. 3. It is contended by the respondents that the dismissal of the suit, though on merit, in the absence of the plaintiff, shall be construed as a dismissal under O. IX R.8 read with O. XVII R.2. It was in such circumstances he filed a petition under O. IX R.9 which also was dismissed and the judgment was confirmed. The petition under O. IX R.9 is a separate and independent proceedings different from the suit as held in the decision reported In Lakshmikutty Panickathy v. Bhargavi (1987 (2) KLT 562). So he cannot now reagitate that matter in a second Appeal. He ought to have filed C.M.A. against the said order dismissing the petition under O. IX R.9. It is also contended on the basis of the decision in MA. Mangilal Rungta', Calcutta v. Manganese Ore (India) Ltd. (AIR 1987 Bombay 87), that such aspect cannot be re-agitated. So he cannot now reagitate that matter in a second Appeal. He ought to have filed C.M.A. against the said order dismissing the petition under O. IX R.9. It is also contended on the basis of the decision in MA. Mangilal Rungta', Calcutta v. Manganese Ore (India) Ltd. (AIR 1987 Bombay 87), that such aspect cannot be re-agitated. Thus having allowed the case under O. IX R.9 to become final, the appellant/plaintiff cannot now raise a question of law as raised in the Second Appeal. Therefore, the question of law has to be answered against the appellant and the appeal has to be dismissed. 4. It is not in dispute that the plaintiff was not present on the date of dismissal of the suit. That dismissal was on merit. It is also not in dispute that there was no evidence on record. Therefore, the procedure to be adopted is as contained in O. XVII R.2 and the Court has to dispose the suit in one of the modes directed in that behalf by O. IX or makes such other order as it thinks fit. As already mentioned above, when the plaintiff is absent, the mode of disposal of the suit in terms of O. IX shall be as provided under R.8 thereof. That is to dismiss the suit unless the defendant admits the claim of the plaintiff. In other words, when the plaintiff is absent, in no case, unless the claim is admitted, the trial court can decree the suit. This is an indication that the trial court, in such situation, cannot go into the merits of the case, because if it come into the merits, it is possible to decree the suit. But R.8 of O. IX does not give power to the trial court to decree the suit when the plaintiff is absent, in the absence of admission of the claim. That means the dismissal of the suit, in the absence of the plaintiff, shall be a dismissal without going into merits or as often said, "dismissal for default". Dismissal of suit on merit will also not come within such order as the Court may think fit as mentioned in O. XVII R.2. The trial court, therefore, went wrong in going into the merits of the case to pronounce a judgment dismissing the suit. Dismissal of suit on merit will also not come within such order as the Court may think fit as mentioned in O. XVII R.2. The trial court, therefore, went wrong in going into the merits of the case to pronounce a judgment dismissing the suit. When the dismissal is on merits, a petition made under O. IX R.9 could not have been filed. Therefore, the trial court rightly dismissed it as not maintainable. No appeal need be filed when the petition was found to be not maintainable, because he can file the regular appeal itself. So the decision in AIR 1987 Bombay 87 (supra) does not have any application at all. It is seen that pursuant to the dismissal of the suit, a decree has been drawn up. Naturally the only course open to the plaintiff was to file a regular appeal. That regular appeal has been dismissed without examining the real point involved in the appeal. The appellate court ought to have, in such circumstances, examined whether evidence was available on record to support the findings of the trial court. That aspect has not been dealt with. In such circumstances, it can easily be found that the suit had been dismissed on merit in the absence of any evidence. So, the view of the trial court had not been supported by evidence. 5. Another view is also possible. In terms of R.8 of O. IX, as already mentioned above, the trial court ought to have dismissed the suit for default. Here the trial court dismissed the suit on merits, which is beyond the scope of O. IX R.B. In such circumstances also, when the petition under O. IX R.9 could not have been filed and it was rightly dismissed as not maintainable, the only way open was to file a regular appeal as done by the appellant. The appellate Court was bound to consider whether the trial court was correct, in terms of O. IX R.9 read with R.2 of O. XVII to dismiss the suit on merits. If that aspect had been examined necessarily the lower appellate court should not have confirmed the judgment. Based on the above two aspects, I answer the substantial question of law raised in this appeal in favour of the appellant and the judgment and decree of both the Courts below are set aside and the matter is remitted for fresh trial. If that aspect had been examined necessarily the lower appellate court should not have confirmed the judgment. Based on the above two aspects, I answer the substantial question of law raised in this appeal in favour of the appellant and the judgment and decree of both the Courts below are set aside and the matter is remitted for fresh trial. The parties shall appear before the trial court on 20.12.1999 and the trial court shall dispose of the same on or before 31.7.2000.