1. This is an application under Section 25, Section Order C. Act, against an order of the Court below restoring a suit. The date fixed for final decision was 12th May 1938. On that date the defendant appeared and. applied for an adjournment in order to file a written statement, and his application was allowed on condition that Rs. 2 were paid as compensation. The suit was adjourned to 12th July 1938, but on that date the defendant did not appear and the sum of Rs. 2 was not paid. The Court thereupon decreed the suit ex parte against the defendant. Thereafter the defendant applied for restoration, and ultimately on 27th August 1938 his application was allowed on payment of the original Rs. 2 as damages plus a further sum of Rs. 4. It is against that order that the present application has been referred. Two pleas are taken before me on behalf of the applicant. The first that the security which was furnished under Schedule 17(1), Provincial Small Cause Courts Act, was insufficient and therefore the Court was not competent to entertain the application for restoration. The suit was decreed for Rs. 251 and a bond was furnished for Rs. 250, that is to say one rupee less than the sum decreed, and it is contended that under the law the Court had no jurisdiction to entertain the application. I have been referred to certain authorities by learned Counsel for both parties, hut it is unnecessary for me to decide this point inasmuch as the application for revision must succeed on the other plea which has been advanced on behalf of the applicant. This plea is to the effect that the judgment of 12th July 1938 was a decision on merits and that no application for restoration lay. Order 17, Rule 3, Civil P.C., as amended by this Court, reads 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.
2. As I read this Rule, it means that the Court has discretion either to decide the case that day or not, but if it does decide the suit, it will be a decision on the merits. Learned Counsel for the opposite party pleads that, since the Court below did not specifically state whether his judgment of 12th July 1938 was under Rule 2 or under Rule 3 of Order 17, Civil P.C., it should be assumed that it was under Rule 2; but I am unable to accept this contention, inasmuch as the adjournment was obviously granted for one of the particular objects contemplated by Rule 3, and it is therefore clear that the judgment under which the suit was decreed was a judgment under Rule 3 of Order 17. It is then contended by learned Counsel for the opposite party that since the decree purported to be and was in fact, an ex parte decree against the defendant inasmuch as the defendant was absent from the Court, the latter was not divested of the right which is conferred under Order 9, Rule 13, Civil P.C., upon a defendant against whom an ex parte decree has been passed, and it is pleaded that under that Rule the defendant was entitled to apply for having the ex parte decree against him set aside. It is of course perfectly true that the decree was ex parte in the sense that it was passed in the absence of the defendant, but where a suit is decided under Order 17, Rule 3, Civil P.C. , appearance on behalf of the defendant will be assumed, whether he was in fact present or not. Rule 2 of Order 17 provides that if 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 9, but there is no such provision in Rule 3, and I am clearly of opinion that a decree which has been passed under Rule 3 cannot be regarded as an ex parte decree so as to entitle the defendant to apply for restoration under Order 9, Rule 13, Civil P.C. This being my view, it follows that the application of the defendant opposite party for restoration of his suit was not entertainable, and therefore the order of the Court below restoring the suit cannot stand. I accordingly allow this application with costs in both Courts and set aside the order of the Court below. This order will of course not affect any other remedy which the opposite party may have, whether by way of review against the ex parte decree of the Court below or otherwise.