John Beaumont, C.J.
1. This is a revision application against an order made in appeal by the Assistant Judge of Sholapur, The matter has been referred to a bench, because it was thought that there is some conflict between the decisions of this Court in Basayya v. Allayya (1925) 27 Bom. L.R. 477 and Rukmansa Rajansa v. Shankargouda Basangouda : AIR1941Bom83 , and that this case is one of a similar character. In point of fact, this case is governed by different considerations.
2. The difficulty which arises in all these cases is as to the application of Order IX in cases in which there has been an adjournment, and which fall under Order XVII, Rule 2, of the Civil Procedure Code, 1908. In the present case the hearing was fixed for February 14, 1939, and there was an adjournment to February 16, and on that date the defendant applied for a further adjournment which was refused. The learned trial Judge then heard the evidence of the plaintiff, and gave judgment in his favour. Subsequently the defendant applied under Order IX, Rule 13, of the Civil Procedure Code, to set the judgment aside, on the ground that it had been passed ex parte. The learned trial Judge held that the decree was not made ex parte, but was passed on merits, and, therefore, it could only be reversed in appeal. In appeal the learned Assistant Judge held that the decree had been passed ex parte, and that the learned trial Judge ought, therefore, to have dealt with the application to set it aside under Order IX, Rule 13.
3. Now, Order XVII, Rule 2, deals with cases which have been adjourned, and provides, 'where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order at it thinks fit.' In Rukmansa Rajansa v. Shankargouda Basangouda, (supra), the plaintiff had failed to appear at the hearing of an adjourned suit, and in such a case Order IX, Rule 8, provides that the Court shall make an order that the suit be dismissed, except so far as the defendant admits the claim. Then Rule 9 enables the plaintiff, where a suit has been dismissed under Rule 8, to apply to get the dismissal set aside on the terms mentioned. In that case the Court pointed out that under Order XVII, Rule 2, the Court could proceed with the matter under Order IX or make such other order as it thought fit, and that if there was proper material before it, the Court might pass an order on merits. In that particular case, the Court held that there was no material on which the Court could make an order on merits, and this would generally be so if the plaintiff has not appeared. But it is possible that in such a case there might be material which would enable the Court to deal with the plaintiff's claim, in whole or in part, on merits. The suggested conflict between that case and the case of Basayya v. Allayya, which was also a case of the plaintiff being in default, is that the Court did in that case express the view that the Judge was bound to make an order under Rule 9 of Order IX. It is true that the Court did not refer to the concluding words in Order XVII, Rule 2, which give the Court a discretion to make such other order as it thinks fit, but presumably the Court considered that there was no cast for acting under that power, and that it was not material to mention it. In my view there is no real conflict between the two cases.
4. But the present case is not a case of a plaintiff in default; it is a case of a defendant in default, and, as to that, different provisions of Order IX apply. Rule 6 provides that where the plaintiff appears and the defendant does not appear at the hearing, and it is proved that the summons was duly served, the Court may proceed ex parte; and then under Rule 13 where a decree is made ex parte against a defendant, he may apply to the Court to set the order aside. A direction that the Court may proceed ex parte does not mean that the Court may decree the plaintiff's case without hearing any evidence because the defendant is absent. It means that the Court can hear the evidence of the plaintiff in the absence of the defendant, and make such order as that evidence justifies. In dealing with an adjourned case under Order XVII, Rule 2, in the absence of the defendant, I find it difficult to see what course is open to the Court except to grant an adjournment to enable the defendant to appear, or to proceed in his absence ex parte. But if the latter course is adopted, as it was in this case, the defendant is entitled under Rule 13 of Order IX to apply to get the decree set aside. In the present case such an application was made, and I agree with the learned Assistant Judge that the learned trial Judge was bound to deal with that application on its merits. The learned Judge seems to have thought that his original order was not passed ex parte because it was based on evidence, but that is wrong.
5. The decision of the learned Assistant Judge was right, and the application will be dismissed with costs.
1. I agree.