1. We shall consider in this judgment the facts of Suit No. 83 of 1920. There is a connected revision relating to a decree passed in Suit No. 124 of 1920. To avoid confusion, we shall deal with the decree in the former suit as from the point of view of the respondents to this application, the decree in Suit No. 86 of 1920 is more in their favour.
2. This Suit No. 86 of 1920 after various postponements was adjourned on the 23rd June, 1921, on the application of the defendant Ramadhin for the production of defence evidence. 3rd August, 1921, was the date fixed for hearing and on that date the defendant did not appear in person, nor did any pleader of his appear. He did not put forward any evidence for the defence. The Court thereupon wrote a judgment decreeing the plaintiff's suit for redemption.
3. It is argued here on behalf of the respondents that the decree purports to be one passed under Order 17, Rule 3. No order or rule is mentioned in the judgment, but in the order sheet it is mentioned that the decree is passed under Order 17, Rule 3. Subsequently, the defendant, treating this decree as one passed ex-parte under Order 17, Rule 2 applied for re-hearing under Order 9, Rule 13. The Trial Court of the Subordinate Judge decided that the application did not lie and that the defendant ought really to appeal from the decree passed on the merits under Order 17, Rule 3. On appeal to the District Judge, that Court came to the same conclusion and dismissed the appeal. This is a revision from the order of the District Judge.
4. It was first argued by the respondents' learned Counsel that no application in revision lay, because the lower Appellate Court had decided rightly or wrongly that the original decree was passed under Order 17, Rule 3 and that therefore no application for re-hearing lay to the Trial Court. In our opinion the provisions of Section 115 will apply if we hold that the application was one for re hearing and the District Judge refused to exercise the jurisdiction vestee in him of hearing an appeal from the refusal of the Trial Court to grant ad application for re-hearing. It will depend upon our subsequent decision whether the lower Appellate Court has exercised its jurisdiction or failed to do so.
5. Coming to the question whether the decree ought to have been passed in the redemption suit under Rule 2 or Rule 3 of Order 17, our opinion is that the decree in such a case should be passed under Rule 2 even where a party has taken time to produce evidence and on the date fixed for hearing of that evidence he is absent. Rule 2 comes first in the order of precedence. It lays down that 'where on any day to which the hearing of the suit is adjourned the parties or any of them failed to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit.' When the party is not present the Court is bound to proceed under this rule and cannot proceed under the later rule, Rule 3.
6. The next question is whether the words 'make such other order as it thinks fit' include an order under Rule 3. It has been held by a Bench of this Court in Ram Charan Lal v. Rughubir Singh A.I.R. 1923 All. 551 that on the proper interpretation of Order 17, Rule 2 a Court cannot pass a judgment on the merits under cover of the words 'make such other order as it thinks fit.' The other order referred to could only mean an order for further adjournment. Mr. Justice Lindsay who delivered the judgment of the Court relied on the Bench ruling of Phul Kuar v. Hashmatullah (1915) 37 All. 460. There has been a certain amount of conflict of authority on this point. In Gaura Bibi v. Ghesitiya (1911) 34 All. 123 where a suit was dismissed on an adjourned date of hearing on the ground that the claim was not proved, the Court held that an application for restoration did not lie under Order 9, Rule 4, the plaintiff's remedy being by way of appeal against the Court's decree. This ruling of the Bench was followed by a single Judge of this Court Mr. Justice Tudball in Ganga Bam v. Chhiddu Singh (1912) 9 A.L.J. 763. From observations made by the learned Judge on page 763 of the report, it appears that he was not in agreement with the opinion expressed in the Bench ruling. Next in order is a Bench ruling of 1915 in Phul Kuar v. Hashmatullah (1915) 37 All. 460 already referred to, by the learned Chief Justice and Mr. Justice Banerji, who observed in the course of their judgment : 'We are of opinion that in a case like the present the Court ought not to have decided the suit on the merits but ought, if it did not in tend to give the plaintiff or his pleader any other opportunity of appearing, to dismiss the suit for default of appearance.'
7. As already pointed out, this case was followed in 1923 in the ruling reported in Ram Charan Lal v. Raghubir Singh A.I.R. 1923 All. 551. At the end of 1920 and in 192L there were two other cases. In Jangpal Singh v. Kushalpal Singh A.I.R. 1923 All. 153 the judgment of Mr. Justice Piggott is printed on page 103. The learned Judge in a case like the present was of opinion that the proper order would be one of an ex parte decree under Order 17, Rule 2. In the same volume is reported the case of Rukam v. Tara Chand A.I.R. 1922 All. 68. The learned Judge Mr. Justice Banerji was of opinion that when one of the parties was absent the proper order would be one under Order 17, Rule 2 and the order must be construed to be one passed under that rule, although it purports to be an order pf dismissal or decree on the merits.
8. We agree with the observations of the learned Judge that the Court must be taken to have done that which it could only do under the provisions of the law. It is clear therefore that according to the trend of recent rulings of this Court, excepting the ruling reported in Gaura Bibi v. Ghasitiya (1911) 34 All. 123 the proper decree in a suit under the circumstances of the present case would be one of as ex parte decree.
9. The respondent's learned Counsel argued that once the Court passing the decree purported to act under Order 17, Rule 3 this Court was bound by such action and must accept that the decree was passed under that rule. In support of this contention a Full Bench ruling in the case of Lalta Prasad v. Kand Kishore (1899) 22 All. 66 was quoted. In that case the point did not really arise. The question was whether an order purporting to have been passed under Section 102 of the Code of 1882 dismissing a suit in default should be construed as one under that section or one under Section 158.
10. We were referred to certain observations of the learned Chief Justice that though the naming of a section is not conclusive it may be a useful piece of evidence in construing the order which must be read and construed as a whole. This opinion does not imply that when a Court has acted under a wrong section or quoted a wrong section, the party complaining against that order cannot take action as if the correct procedure had been adopted. It would be interesting to note that Mr. Justice Banerji was a party to the Full Bench ruling and was also the Judge who delivered the judgment which we have already referred to and which is reported in Rukam v. Tara Chand A.I.R. 1922 All. 68. We have quoted from that judgment to indicate that learned Judge's opinion that a Court must be presumed to have passed such an order as it could pass according to law, whatever section it may have mentioned in its order.
11. We are of opinion that the decree was passed ex parte and the defendant was entitled to apply for a re-hearing. Both the Subordinate Courts have failed to exercise a jurisdiction vested in them.
12. I entirely agree. But having regard to the fact that there has been some conflict of opinion on the point raised in these applications for revision. I wish to make one observation.
13. It has been said that where in spite of the fact that one of the parties to a suit is absent the Court proceeds to decide the ease on the merits and not according to the actual circumstance of the case, namely, one of the parties is ab3ent, the remedy of the absent party by an application either for re-hearing or for restoration is barred, and his only remedy is by way of an appeal.
14. It is therefore admitted that there is a remedy. The question is which is the proper remedy. I will take an extreme case. Say a defendant obtained time to produce his witnesses. On the date fixed for hearing he did all he could do to arrive at the Court in time, but there happened to be a railway accident and he and his witnesses were delayed. Where is he to prove the facts? It must be conceded that the defendant was prevented by a sufficient cause from appearing and he must have a redress. But if the remedy, is by way of appeal, will he be expected or will he be allowed to produce evidence in the Appellate Court to prove that ha had a sufficient reason for his non-appearance? Will the Appellate Court entertain fresh evidence or will it dispose of the appeal on merits as recorded on the file of the trial Court? Claarly then the remedy, if one is not denied to the absent party, would be by an application to the Court of first instance and not by way of an appeal the act of the Court, namely, its attempt to decide the case on the merits, cannot prevent a party from seeking his proper remedy.
15. The orders of the Courts below are set aside and the Court of first instance is hereby directed to hear the application under Order 9, Rule 13 of the Civil Procedure Code. Costs here and heretofore to abide the result.