1. This is a defendant's appeal from an order of remand passed by the lower appellate Court. The material facts are as stated below. On 10th March 1941, a suit was filed by the plaintiff in accordance with the provisions of Order 21, Rule 63, Civil P.C., for a declaration that certain property, which the defendant had attached in execution of a decree obtained by him against the plaintiff's husband, was not liable to attachment and sale in execution of that decree as it belonged to the plaintiff and not to the defendant's judgment-debtor. The Court fixed 28th April 1941, for the hearing of the suit. The defendant was absent on that date and the suit was decreed ex parte. On 27th May 1941, the defendant filed an application under Order 9, Rule 13 praying that the ex parte decree be set aside. This application was granted on 11th October 1911, subject to the payment by the defendant applicant of a certain sum of money as cost to the plaintiff by 27th October 1941. The costs were deposited as ordered and the Court fixed 15th November 1941, for the appearance of the defendant and directed him to file his written statement in answer to the claim by that date. The defendant appeared on 15th November 1941, and filed a written statement. The parties also filed applications on that date stating that the documents which each of them had to file had not yet been obtained and prayed that time be allowed to them for filing their documentary evidence. The plaintiff's application was 340 and the defendant's application was 350. The presiding officer of the Court happened to be absent on casual leave on 15th November 1941, and so an order was recorded in the order sheet to the effect that the case would be heard on 6th December 1941, and that the applications, 340 and 350, would also be considered on that date. The case was taken up on 6th December 1941, in the presence of the parties and issues were framed and 5th February 1942 was fixed for the final hearing of the suit. The applications 340 and 850 were granted and each party was directed to file its documentary evidence by 5th February 1942. When the case was taken up for final hearing on 5th February 1942, the plaintiff's counsel appeared and filed an application for adjournment. That application was refused. Thereupon the plaintiff's - counsel stated that he had no further instructions to proceed with the suit, and the Court recorded its decision in the following words:
Plaintiff is absent. His (her) lawyer only applied for postponement on the ground that a revision application has been filed against the order of restoration of the suit by this Court dated 11th October 1941. Postponement cannot be granted. The suit is therefore dismissed for default of plaintiff with costs to defendants, as plaintiff's lawyer has no further instructions in the suit.
The plaintiff thereupon filed an appeal in the lower appellate Court treating the decision as a decree. Apparently, the plaintiff and her counsel treated the decision as one under Order 17, Rule 3 of the Code, as amended by this Court, dismissing the suit on the merits. The appeal came up for hearing on 9th August 1943. No objection by the defendant appears to have been taken before the lower appellate Court that the appeal did not lie on the ground that the Munsif had not decided the suit on the merits under Order 17, Rule 3. The appellate Court, after hearing the parties, came to the conclusion that the Munsif was wrong in refusing the plaintiff's request for adjournment and that the appeal should be allowed. This also shows that the Court as well as the parties treated the decision as one under Order 17, Rule 3. The Court, however, was of the opinion that the plaintiff should pay a sum of Rs. 25 to the defendant as 'damages' within ten days. It accordingly ordered that the case be put up for final orders after the expiry of the period of ten days allowed to the plaintiff. The sum of Rs. 25 was paid by the plaintiff in accordance with the order of the Court and, on 20th August 1943, the Court allowed the appeal, set aside the decree of the lower Court and remanded the case to that Court with the direction that it should be reinstated to its original place in the register of suits and should be heard and decided in accordance with law. It will be noticed that the Court used the word 'decree.' This appeal is directed against that order of remand. In the first two grounds of the Memorandum of Appeal it is stated that the decision of the trial Court was under Order 17, Rule 2 under which the Court had to proceed in one of the modes mentioned in Order 9, and was not under Order 17, Rule 3. In the third ground of appeal it is stated that the only course open to the plaintiff was to apply for restoration under Order 9, Rule 3 or Rule 9. It may be pointed out that the reference to Rule 3 of Order 9 is not intelligible. In the fourth and last ground of appeal it is stated that 'the order of the lower appellate Court will cause a great miscarriage of justice to the appellant.' Before the Bench by which this appeal has been referred to a larger Bench as well as before us the contention put forward on behalf of the appellant was that the decision of the trial Court was one under Order 17, Rule 2 and that, therefore, the only course open to the plaintiff was to file an. application under Order 9, Rule 9 to have the dismissal set aside. It may be pointed out here that this Court has added an explanation- apart from another paragraph-to Order 17, Rule 2. That explanation is in these words:
No party shall be deemed to have failed to appear if he is either present or represented in Court by an agent or pleader, though engaged only for the purpose of making an application.
In view of this explanation, it is clear, in our judgment, that the trial Court could not, on 5th February 1942, proceed under Rule 2 of, Order 17, as it originally stood, in other words, under what is now para. 1 of Rule 2 after the additions made by this Court. The argument of the appellant's counsel, then, is that, in any event, the language used by the trial Court shows that it intended to proceed under para, 1 of Rule 2 of Order 17. We do not consider it necessary to express any opinion on the question whether the intention of the Court, if it is clearly expressed, is material even if it has purported to act in accordance with a certain provision of the Code under a misapprehension as to the correct provision applicable, because the language used by the Court in the case before us cannot be said to be clear on the point. It is true that the Court said that the plaintiff was absent. That was correct so far as the physical presence of the plaintiff was concerned. The plaintiff's counsel, however, was present and filed an application for adjournment. It is also true that the Court used the word 'default.' It has been argued on behalf of the appellant that this word must be taken to have been used in the sense of failure to appear, and not in the sense of failure to produce evidence or to perform any other act necessary for the further progress of the suit for which time had been allowed within the meaning of Rule 3 of Order 17, as amended by this Court. In our judgment this contention cannot be accepted. The utmost that can be said is that the language used by the trial Court was ambiguous and was open to both the constructions mentioned above. If the plaintiff and her advisers placed the latter construction upon it, can it be said that they were necessarily wrong? We think not. Furthermore, even if we were to accept the contention that para. 1 of Rule 2 of Order 17 was applicable to the facts of this case which we are far from doing we would find it difficult to hold that a party can be penalised if the Court chooses to couch its order in ambiguous language which is open to two constructions. As has been pointed out above, the appellate Court treated it as a decision under Rule 3 of Order 17 and no exception to that view was taken by the defendant. We are, further, of the opinion that Rule 3 of Order 17, as amended by this Court, was in terms applicable to the facts of this case. That rule stands as follows:
Where any party to a suit, to whom time has been granted, fails, without reasonable excuse, to produce his evidence, or to cause the attendance of his witnesses, or to comply with any previous order, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, whether such party is present or not, proceed to decide the suit on the merits.
As has been shown above, the first hearing of the suit in the present case was fixed for 15th November 1941, on which date the defendant had been directed to appear and to file his written statement in answer to the claim. The parties did appear on that date and the defendant filed his written statement. The plaintiff on that date filed an application - 34G - requesting the Court to grant her time for the production of her documentary evidence. That application was taken up on the next date of hearing, viz., 6th December 1941, and was allowed, time being granted to her for filing her documents by 5th February 1942. Thus, one of the things that happened on 5th February 1942, was that the plaintiff failed to produce her documentary evidence for which time had been allowed. The only provision in the Code under which the dismissal of the suit could, in these circumstances, take place was Rule 3 of Order 17. That being so, it is impossible to say that the learned Judge of the Court below was wrong in holding that the appeal filed by the plaintiff was competent. In an earlier part of this judgment we have said that the memorandum of appeal filed in this Court contains four grounds and have also given their contents. None of those grounds attacks in clear words the decision of the lower appellate Court on the merits. It has been contended on behalf of the appellant that the fourth ground of appeal can be deemed to challenge the decision on the merits and we have allowed the counsel to submit arguments on the merits also. We are, however, clearly of the opinion that the appellant's learned Counsel has failed to show that the decision of the learned Judge below is wrong on the merits. The learned Judge took all the circumstances into consideration and we are unable to hold that he arrived at a wrong decision. Our conclusion, therefore, is that this appeal is without force. It is accordingly dismissed with costs.