Chandra Prakash, J.
1. This is an application in revision against the order dated 26-2-1966 of Shri G. D. Dube, Munsif, Ballia (West) setting aside the ex parte decree under Order IX, Rule 13, C. P. C.
2. The facts leading to this application in revision are not disputed and may be narrated as follows,
The plaintiff-applicant filed a suit for the recovery pf Rs. 510 as damages for certain wood alleged to have been cut and misappropriated by the defendants. Defendant No. 1 alone filed a written statement and resisted the claim on various grounds. Issues were framed in the case on 7-12-1964 and 12-3-1965 was fixed for final hearing. On that date defendant No. 1 was absent and his counsel moved an application for adjournment and the case was adjourned to 9-7-1965. On 9-7-1965 the Presiding Officer was absent and the case was adjourned to 3-9-1965. On 3-9-1965 an application 21-D was moved on behalf of defendant No. 1 for the adjournment of the case on the ground that defendant No. 1 was busy at Lucknow in connection with a no-confidence motion against the Speaker of the Legislative Assembly. This application was rejected by the trial court. The learned counsel who moved the application 21-D, that day stated that he had no further instructions in the case. The Court then proceeded against the defendants ex parte and decreed the plaintiff's suit.
3. Later on, defendant No. 1 moved an application under Order IX, Rule 13, C. P. C. for setting aside the ex parte decree. This application was opposed by the plaintiff-applicant. It was contended by the plaintiff-applicant in the Court below that the decision will be deemed to have been on merits and there was no question of setting aside the ex parte decree. The trial court overruled this contention and held that the suit had been decreed ex parte and it should be set aside. He, therefore, set aside the ex parte decree on payment of Rs, 20 as costs to the plaintiff-applicant.
4. The plaintiff has now come up in revision before me.
5. It is contended on behalf of the applicant that the view taken by theCourt below is not correct and the order passed by the Court below should be set aside.
6. I have heard learned counsel for the parties and I have also gone through the record. I have come to the conclusion that the contention on behalf of the applicant has much force.
7. Order XVII, Rule 2, C. P. C. 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 behalf 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 only for the purpose of making an application.'
8. It will thus be seen that paragraph 1 of Rule 2 governs the cases where the case had been adjourned either at the instance of the parties or at the instance of the Court suo motu; while paragraph 2 governs the cases where substantial portion of evidence of any party had already been recorded. The fact remains that the Explanation governs both paragraphs 1 as well as 2, In the present case the case had been adjourned to 3-9-1965 at the instance of the Court itself because the Presiding Officer was absent on 9-7-1965, the preceding date. On 3-9-1965 Shri R. N. Chaubey, counsel for defendant No. 1 opposite party, moved an application for adjournment and that was rejected by the trial Court. In view of the Explanation to Rule 2 quoted above defendant No. 1 on whose behalf his counsel moved an application for adjournment will be deemed to have been present on that date and it cannot be said that the suit was decided in his absence As such the decision of the Court below was on merits, notwithstanding the fact that the Court below used the words 'ex parte' in the judgment. The remedy against that decree for the defendants lay by filing an appeal against it and it was not open to defendant No. 1 at least, who had contested the case, to get it set aside under Order IX, Rule 13, C, P. C. I am supported in my view by the ruling reported in Girraj Kishore v. Maslehuddin (AIR 1952 All 198) andthe ruling reported in Gur Prasad v. Suraj Kali (1963 All LJ 450).
9. On behalf of the opposite party reference was sought to the rulings reported in Juggi Lal Kamla Pat v. Ram Janki Gupta 1962 All LJ 495 = (AIR 1962 All 407) and Dewari Lal v. Sunder Lal (AIR 1962 All 549). The case reported in Juggi Lal Kamla Pat v. Ram Janki Gupta (AIR 1962 All 407) (supra) is ,a Division Bench case but is distinguishable on facts. In that case the date fixed for final hearing was 23-5-1956. Before the date fixed, i.e., on 22-5-1956, an application was filed by one P. C. Jain on behalf of the plaintiff for adjournment on the ground that the senior counsel of the plaintiff had gone to England and the case could not be decided without his presence. The defendant's counsel gave his consent also for postponement by writing 'No objection'. But this application was rejected by the trial Court on 23-5-1956, i.e., the date fixed for final hearing, on the ground that P. C. Jain, who moved that application, was not competent to move it on behalf of the plaintiff. On that very date, i.e., on 23-5-1956, a second application was moved! by Sri Gopinath Dikshit. counsel for the plaintiff, for adjournment and the trial Court ordered that it should be put up for disposal on, the next day, i.e., on 24-5-1056, and in the meantime the defendant was given an opportunity to meet it. It was also ordered that the parties should come prepared with their evidence on 24-5-1956. On 24-5-1956 Shri Gopinath Dikshit informed the Court that he had no instructions to press the application for adjournment and the trial Court, therefore, rejected the application for adjournment on the ground that the affidavit in support of it had not been properly sworn. The suit was, therefore, dismissed in default of the plaintiff. It will be thus seen that the application for adjournment on behalf of the plaintiff had been moved on 23-5-1956 and it was not moved on 24-5-1956 to which date the case had been adjourned. The counsel for the plaintiff informed the Court in the beginning of the case that he had no instructions to press the application for adjournment and it also appears that he had no further instructions also. It will, therefore, follow that no application for adjournment was made on behalf of the plaintiff on 24-5-1956, the date fixed in the case. The application for adjournment had been moved a day before and the counsel for the plaintiff informed in the very beginning that he had no instructions in the case with the result that it cannot be held by virtue of the Explanation attached to Rule 2 of Order XVII that the plaintiff was present on account of the adjournment application moved on23-5-1956, i.e., a day earlier. As a matter of fact, on 24-5-1956 to which date the case had been adjourned the plaintiff was not present either in person or by his counsel, who stated that he had no instructions in the case. It was, therefore, rightly held that the plaintiff could not be deemed to be present on 24-5-1956.
10. The Single Judge case reported in AIR 1962 All 549 (supra) is also distinguishable on facts. In that case the date fixed for final hearing was 1-4-1959. On that date the defendant made an application for adjournment. The court did not Pass any orders on that application and directed that the application shall be put up after the plaintiff's evidence had been recorded. After making the application for adjournment the counsel for the defendant withdrew from the case. The plaintiff's evidence was recorded and the only witness who was produced was not cross-examined and then the application for adjournment was taken up and it was rejected. It was also held that it could not be said that the defendant was present on that date. In the above case the defendant's counsel withdrew from the case before any order was passed on the defendant's application and evidence was recorded in the absence of the defendant and his counsel who had no opportunity to cross-examine the witness. The circumstances of the above case were, therefore, peculiar as the defendant's counsel had withdrawn from the case before any orders could be passed on the application for adjournment.
11. For the reasons given above, I am of the opinion that the two Division Bench cases cited on behalf of the applicant are applicable on all fours and the decree passed against the defendant will be deemed to be a decree passed on merits and not ex parte. The application in revision is allowed with costs and the order passed by the Court below is set aside and the application of defendant No. 1 for setting aside the ex parte decree is dismissed with costs. The stay order is discharged.