1. This is an appeal from an order refusing to set aside an order dismissing a suit for want of prosecution. 1-12-1949 was fixed as the date for final hearing. The plaintiff took adjournment on that date on the ground that he was indisposed. 17-2-1950 was the next date fixed for final hearing. On that date also the plaintiff made an application for adjournment on the ground that he was Indisposed. This application was rejected by the court and thereafter the counsel for the plaintiff stated that he had no further instructions to proceed with the case. The Court passed the following order:
'The suit is dismissed for want of prosecution with costs to the defendants.'
2. The plaintiff then made an application within time for restoration of the suit to its original number. The court rejected this application on the ground that the order was appealable as it was an order on merits under Order 17 Rule 3 Civil P. C.
3. Learned counsel for the appellant had urged that the order in question was not an order on merits under Order 17, Rule 3 C. P. C., and that it was an order of dismissal of the suit for default under Order 9 Rule 8, C. P. C. He has further urged that this order could not be treated as an order on merits for the reason that the court gave no judgment as required by Order 20 Rules 4(2) and (5). In support of the contention that the order of dismissal for want of prosecution is an order of dismissal for default, he has relied upon the decision of Bench of this Court in Panna Lal v. Basdeo : AIR1933All118 and also on certain observations made in the ruling: Sri Krishen v. Radha Kishen : AIR1952All652 . On behalf of the respondents, on the other hand, it has been urged that the order in question must be treated as an order under Order 17, Rule 3, C. P. C. and in support of his argument learned counsel has relied upon several cases: Baldeo Singh v. Chhaju Singh : AIR1931All703 , Manmohan Das v. Krishna Kant Malvia : AIR1933All41 , Ram Dulari v. Bhola : AIR1935All398 , Jafri Begam v. Asghar Ali Khan : AIR1936All659 , Sheo. Pujan v. Bishnath : AIR1939All642 , Narain Das v. Madan Mohan : AIR1939All524 , Jhandoo Mal & Sons v. Khalsa Singh : AIR1940All305 Bhutan Rain v. Madan Lal, AIR 1947 All 40 (J).
4. On a consideration of the case law and the relevant provisions of the Code of Civil Procedure it appears to us that the contention of the learned counsel for the respondent is correct. In all cases in which in the absence of one of the parties a final order has been passed against him in a case on an adjourned date, there are always two questions to be considered:
(1) What was the Court empowered to do--to proceed under Order 9 or to decide on merits?
(2) What has the Court actually done--has it proceeded under Order 9 or decided on merits?
5. First as to the power of the Court.
Order 17, Civil P. C. refers to adjournments. Rule 1 authorises the court at any stage of the suit to adjourn the case from time to time if sufficient cause is shown. Rule 2 as amended by this Court and as it stands at present is as follows:
'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 be-half by Order IX or make such other order as it thinks fit. Where the evidence, or a substantial portion of the evidence, of any party has already been recorded, and such party fails to appear on such day, the Court may in its discretion proceed with the case as if such party were present, and may dispose of it on the merits.
Explanation:--No party shall be deemed to have failed to appear if he is either present or is represented in court by an agent or pleader, though engaged for the purpose of making an application.'
Rule 2, therefore, deals with a case in which one of the parties in fact fails to appear on an adjourned hearing, if no evidence, or a substantial portion of the evidence of the absent party has been recorded then the court may pass any one of two orders, i.e., (a) if the plaintiff is absent, dismiss the suit for default under Order 9, Rule 8 and if the defendant is absent, decree the suit ex parte under Order 9 Rule 6, 11 or 12, or (b) it may make such other order as it thinks fit, i.e., adjourn the case.
6. If, however, evidence or a substantial portion of the evidence of a party has been recorded and such party fails to appear on the date fixed, the Court may proceed to decide the case on merits even though the party is absent, or it may pass any of the orders mentioned above, i.e., an order under Order 9, or an order of adjournment.
7. The explanation states the circumstances under which a party is not to be deemed to have failed to appear. If the case falls under the explanation the party concerned cannot be considered to be absent, and no order under Order 9 can be passed, and the Court may either adjourn the case or decide it on merits.
8. Rule 3 as originally enacted by the Legislature was as follows: 'Where, in a case to which Rule 2 does not apply, any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance, of his witnesses, or to perform any other act, necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith.'
9. This was amended by the Allahabad High Court by notification No. 6324/35(a) dated 2-12-1926 to read 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.'
10. As amended, therefore, a suit could be decided on the merits under this rule even though the party was absent. By an amendment dated 1-7-1944 this amendment was cancelled by the Court and the original rule as enacted by the Legislature was restored. When this original 'rule was restored it was held in one case by a Division Bench of this Court (see Qudrutullah v. Moham-mad Kasim Khan : AIR1952All208 ) that this rule did not apply when a party to whom time had been granted was absent and that it applied only when the party concerned was present.
But in : AIR1952All652 another Division Bench held that the rule could apply even when the party concerned was absent provided that the conditions laid down in the rule were satisfied. This conflict of opinion was however avoided by a later Amendment of the rule made in the year 1953 by which it was made clear that the rule did not apply when the party concerned was absent.
Thus as Rule 3 stands at present in this Court it can apply only when the party concerned is present on the adjourned date or is deemed to be present under the explanation to Rule 2 and he fails to do things for which the adjournment was granted to him and in such a case the Court may decide the case on the merits or adjourn it but has no power to pass an order under Order 9.
11. There is a difference between dismissing or decreeing the suit under Order 9 and decreeing or dismissing the suit on merits. In the former case, an application for restoration of the suit or for setting aside the ex parte decree lies to the Court which passed the order. In the latter case, no such application can be made and the aggrieved party must proceed further by means of an application for review or by means of an appeal to a higher Court.
12. In the present case 17-2-1950 was an adjourned date, the adjournment having been made at the instance of the plaintiff himself. He was absent, but an application for the adjournment of the case was made on his behalf by his counsel. In spite of the counsel withdrawing from the case after the application was rejected, the plaintiff would be deemed to be present as the case fell under the Explanation to Rule 2. Since the Court did not adjourn the case, the only order the Court could pass was to dismiss the suit on merits for want of 'evidence.
13. Now, as to the actual order passed by the lower Court: If the Court has used the expression 'the suit is dismissed on merits for want of evidence' or even used the expression 'suit is dismissed for want of evidence' there could be no doubt that the decision was a decision on merits and the Court's order was a decree and fulfilled the requirements of Section 2, Sub-section (2) of the Code of Civil Procedure. Unfortunately, however, the expression used by the Court was 'the suit is dismissed for want of prosecution'.
14. The expression 'for want of prosecution' is a dubious expression. It may mean dismissal for default on the ground that no one was present on behalf of the plaintiff to prosecute the case and it may also mean dismissal for want of evidence on the ground that the plaintiff was present or deemed to be present but took no steps to produce evidence in support of his case.
15. Likewise an order 'the suit is decreed ex parte' is also ambiguous. When a party or his counsel does not take part in the proceedings but the party is deemed to be present, the Court very often uses the expression 'ex parte' in its order decreeing the suits on merits. In a case where the defendant is present or deemed to be present and the suit is to be decreed on merits, then, although the defendant does not take part in the proceedings an order decreeing the suit ex parte will have to be treated as an order decreeing the suit on merits. The expression 'suit is decreed ex parte' will in such a case be treated as decreeing the suit on merits.
16. As the circumstances in the present case brought the case within the purview of Order 17, Rule 3, the order of dismissal of the suit for want of prosecution must be construed and treated as a dismissal for want of evidence on merits. The order was, therefore, a decree and an appeal lay against the order and no application under Order 19, Rule 9 was maintainable.
17. The view we have expressed above is supported by a large number of cases decided by this Court already referred to by us. The only case which runs counter to this volume of authorities is a decision of a Bench in : AIR1933All118 . In that case on an adjourned date, the adjournment having been granted at the instance of the plaintiff, the Court dismissed the suit 'for want of prosecution' and it was held that the Court did not actually decide the suit on merits and that a dismissal for want of prosecution could not be characterised as a decision on merits. The Court observed:
'It is true that the learned counsel for the plaintiff was present on the date that the order was passed and therefore the order dismissing the suit for default was not in accordance with law, but we are not concerned with the question whether the order dismissing the suit was the proper order to pass. We have to decide the validity or otherwise of the preliminary objection by reference to the order actually passed by the learned Assistant Collector. It may have been a wholly wrong and indefensible order but if the order was one under Order 9, Rule 8, Civil P. C., as we hold it was, it could be set aside by the Assistant Collector under Order 9, Rule 9, Civil P. C., or under the inherent jurisdiction vested in Courts, by Section 151, Civil P. C. In either case the order was not appealable to the District Judge and therefore Section 253, Tenancy Act, has no application to the case.'
18. These remarks were however obiter as the Court was of opinion that, even if a contrary view was taken, they would be slow to interfere in the exercise of their revisional jurisdiction.
19. In the case of : AIR1952All652 the order for dismissal was in these terms: 'The suit is decided under Order 17. Rule 3, C. P. C. The suit be dismissed with costs'. This order was clearly on merits under Order 17, Rule 3, and, therefore, an appeal lay against the order. An application under Order 9, Rule 9 was held to be Incompetent. It was observed that:
'The question whether an application for restoration is maintainable must be decided upon an interpretation of the order which the Court passes. If there is any doubt about the intention of the Court passing the order as to whether it intended to proceed under Order XVII, Rule 3, or Order XVII. Rule 2, in that case we can say that the order should be construed as one which ought to have been passed. But this cannot be done when the Court expressly passes an order under one of the two rules. In. that case the aggrieved party should file an appeal against the order which is in fapt a decree and should not apply for restorations.'
20. As stated above the order dismissing the suit for want of prosecution when the plaintiff is present or deemed to be present and when Order 17 Rule 3, applies or when the second part of Order 17, Rule 2 added by this Court applies must be construed as if the order was of dismissal for want of evidence. But where the Court clearly says that it is passing an order under Order 9 other considerstions might apply.
21. The argument that the order could not be treated as a decree as it was not preceded by a judgment is not tenable. Order 20, Rules 4(2) and 5 are not necessarily to be strictly followed when there is absolutely no evidence on the record. When the plaintiff is wholly unable to proceed with the case, an order simply dismissing the suit may be made. In such circumstances it would be a sheer formality to write a judgment on every issue because it will be a repetition of the same reason for every issue.
The mere fact that Rules 4 and 5 of Order 20 have not been complied with will not render the ultimate order anything other than a decree. A decree does not depend upon the quality of the judgment but upon the fact that the Court has given formal expression of an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. A decision dismissing a suit for want of evidence or proof disposes of all the matters in controversy in the suit against the plaintiff and, therefore, the decision is a decree.
22. For all these, reasons we dismiss this appeal but in the circumstances of the case we make no order as to costs.