1. Rafiq Ahmad and Iqbal Ahmad, the plaintiffs-appellants, instituted a suit against the defendants, Mohammad Shafi and others in the Court of the Civil Judge of Aligarh. That suit came up before the Court for hearing on 18th May 1945. The plaintiffs had summoned more than 20 witnesses for that date; hut only two could be examined on that date. The case was then adjourned for further hearing to the next day, viz, 19th May 1945. On the last mentioned day, one more witness was examined; and, for want of time, the case was adjourned for further hearing to 21st May 1945, on which date the plaintiffs applied for time to move the District Judge for transfer of the suit to some other Court. The application was granted and plaintiffs were ordered to pay Rs. 50 as costs of adjournment. The costs were to be paid by 26th May 1945, but they were not paid. An application for transfer of the suit was filed in the Court of the District Judge; but it was rejected. Thereafter, 26th October 1945, was fixed for final disposal of the suit. The plaintiffs applied for change of date; but their application was rejected. On 25th October 1945, the plaintiffs took out summonses for 15 witnesses, but they (plaintiffs) were absent when the suit was taken up for hearing on 26th October 1945. The hearing was adjourned to 29th October 1945. The Court proceeded to decide the suit on merits, under Rule 3 of Order 17, Civil P.C., and dismissed it the same day. The plaintiffs made an application under Order 9, Rule 9, Civil P.C., to have the dismissal set aside; but the Court dismissed the application as not maintainable, on the ground that the suit was decided under Order 17, Rule 3, Civil P.C. This appeal is directed against the order dismissing the application under Order 9, Rule 9, Civil P.C.
2. On behalf of the appellants, it has been contended that the provisions of Rule 3 of Order 17 of the Code in terms did not apply and the Court should be deemed to have acted under Rule 2 of the same order, read with Order 9 of the Code. Rule 3 of Order 17 is as follows:
Where 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.
The plaintiffs had not applied for, nor were they granted, time to do anything. On 19th May 1945, the Court adjourned the suit for want of time and on 21st May the plaintiffs were granted time to make an application for transfer and they did so. When the case was adjourned on 21st May the plaintiffs were, no doubt, ordered to pay lis. 50 as costs; but the order allowing adjournment was not made conditional on payment of costs. 26th October 1945 was the date fixed for final disposal of the suit. Obviously, therefore, Rule 3 of Order 17 had no application and the Court could not proceed to decide the suit on merits under the said Rule.
3. Rule 2 of Order 17 reads 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 O, 9 or make such other order as it thinks fit.'
And to this Rule this Court has added
Where on any such day the evidence, or a substantial portion of the evidence, of any party has been recorded and such party fails to appear, 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:....
As 26th October 1945, was not the first hearing, it must be deemed to be an adjourned hearing contemplated by Rule 2 of C.17 and the plaintiffs having failed to appear on that day, the Court could 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;' and, in view of the provisions contained in the paragraph added by this Court the Court concerned could proceed to dispose of the suit on merits if the evidence or a substantial portion of the evidence of any party had been recorded and such party had failed to appear. In this case, the entire evidence had not been recorded and the examination of 3 out of 20 witnesses could not be considered as the recording of a substantial portion of the evidence. The expression 'or make such other order as it thinks fit' did not empower the Court to decide the suit on merits; and, in any case, the circumstances in which the Court could proceed to dispose of the suit on merits must have been those which are mentioned in the now paragraph added by this Court in Rule 2. Therefore, the Court could not decide the suit on merits, even under Rule 2 of Order 17 as amended by this Court. In the circumstances of the present case, the Court could proceed only to dispose of the suit in one of the modes directed in that behalf by Order 9. We, therefore, find considerable force in the contention put forward on behalf of the appellants.
4. The learned Counsel for the respondents has contended that the suit was dismissed on merits under O 17, Rule 3, Civil P.C. and the decree which followed could only be challenged in appeal that there being no dismissal under Order 9, Rule 8, Civil P.C., the application under Order 9, Rule 9, was not maintainable, and that in an appeal [from an order rejecting the application under Order 9, Rule 9, the question whether the Court could or could not proceed to dispose of the suit on merits under Order 17, Rule 3 could not be gone into. On the authority of a decision of a Division Bench of this Court in Nasir Khan v. Itwari A.I.R. (11) 1924 ALL. 144 the learned Counsel further contended that the appellate Court should see what the Court has done and not what it should have done. He also relied upon a single Judge case in Madho Das v. His Highness the Maharajah of Banaras : AIR1925All252 which was based upon the earlier decision in Nasir Khan's case A.I.R. (11) 1924 ALL. 144. The appellants' learned Counsel has sought to distinguish the cases referred to above and has invited our attention to the case of Raja Singh v. Manna Singh and Ors : AIR1940All217 where in a revision this Court had considered the question whether an ex parte decree under Rule 3 of Order 17 of the Code was, in effect, a decree under the said Rule, or it was an ex parte decree which could be set-aside on an application under Order 9, Rule 3, Civil P.C. The respondents' counsel has urged that Raja Singh's case A.I.R. (27) 1940 ALL. 217 has no bearing on the facts of the present case.
5. In Nasir Khan's case A.I.R. (11) 1924 ALL. 144 on the date fixed for hearing of an appeal the appellant as well as his counsel were absent, the appellant's brother was present and applied for adjournment, but it was refused and the appeal was dismissed 'on the merits' as the Court found no force in the appeal. In second appeal it was contended that under Order 41 Rule 17, Civil P.C., the Court should have either allowed an adjournment or dismissed the appeal for default. The respondents urged that if the appellant's contention was correct no further appeal lay. Both the contentions were overruled and the Court observed:
The right of appeal does not depend on what a Court ought to have done but on what it actually did.
6. Rule 17 of Order 41 of the Code empowers the Court to make an order dismissing the appeal in a case where the appellant fails to appear on the date fixed for the bearing of the appeal or on any other day to which the hearing is adjourned and also to decide an appeal ex parte if on any such date the respondent fails to appear, The Court is given the discretion to dismiss the appeal for default and it follows that the Court can also dismiss the appeal on merits. If an appeal is dismissed for default under Rule 17 of Order 41, on sufficient cause being shown, the appeal can be re-admitted under Rule 19 of Order 41 for re. hearing and decision on merits. In other cases-a further appeal, if allowed by law, can be filed. The wordings of Rules 2 and 3 of Order 17 of the Code are different. Therefore, the observations in Nasir Khan's case A.I.R. (11) 1924 all. 144 cannot be helpful in deciding a, case like the one before us. It may be remarked in passing that in Nasir Khan's case A.I.R. (111) 1924 All. 144 an appeal was filed and it was urged that an application for re-admission of the appeal should have been filed while in the present case an application was presented where an appeal could have been filed. Different considerations arise in the two cases referred to above, We are, therefore, not pre-Spared to apply the principle laid down in Nasir Khan's case A.I.R. (11) 1924 ALL. 144 to the facts of the present case.
7. Madho Dass's case : AIR1925All252 is also distinguishable. There 'the defendant had taken time for framing of issues, and on the date finally fixed he did not appear. The plaintiff was present. The Court framed issues, took evidence on behalf of the plaintiff, and decided the case on that evidence.' The provisions of Rule 3 of Order 17, Civil P.C., were clearly applicable to the facts of that case and the principle laid down in Nasir Khan's case A.I.R. (11) 1924 ALL. 144 was applied.
8. Raja Singh's case : AIR1940All217 is more in point. In that case, there were several adjournments for one reason or the other. There was a change of presiding officers and the new presiding officer fixed a date for final disposal. On the date so fixed the plaintiff appeared, but the defendant was absent. The Court made the following order:
Today the defendants absented though last time they took time to file a compromise. The suit is therefore decided to-day under Order 17, K. 3, Civil P.C.
On the finding that it was an ex parte decree as contemplated in Order 9, Rule 13, of the Code an application was made thereunder. The matter was taken to this Court in revision, and it was contended that the suit having been dismissed under Order 17, Rule 3, Civil P.C., no application under Order 9, Rule 13, Civil P.C. was maintainable. The contention was overruled and at p. 202 it was Observed:
The mere fact that the Court remarked on 18th August 1937, when decreeing the suit in the absence of the defendants, that it was acting under Order 17, Rule 3 cannot make Order 17, Rule 3 applicable.... The defendants had not, on the date immediately preceding 18th August 1937, taken time for filing a compromise, or, for the matter of that, for anything else.
The Court held on the facts that the case was not heard and decided on 18th August 1937, in accordance with the provisions of Order 17, Rule 3, and that an application under Order 9, Rule 13 lay.
9. It is clear, therefore, that this Court in revision entered into the question whether an order purporting to have been passed under Order 17, Rule 3, Civil P.C. was an order under that provision of law.
10. In the present case the Court below bad made the following order on 29th October 1945:
Since part (most) of the evidence of the plaintiffs has been recorded and the case was adjourned on their application I proceed under Order 17, Rule 3, Civil P.C.
As we have seen above, only 3 out of 20 witnesses-bad been examined and the case had not been adjourned to 29th October 1945, on the application of the plaintiffs. It was an adjourned date of hearing. Clearly, therefore, the Court had no jurisdiction to proceed with the suit under Rule 3 of Order 17, Civil P.C. That being so, the Court could proceed under Rule 2 of Order 17, read with Order 9, Rule 8, Civil P, C. The order dismissing the suit' did not make any mention of the Order or the Rule under which it was passed. The learned Counsel for the respondents has laid stress on the fact that there was no dismissal under Order 9, Rule 8, Civil P.C. The dismissal having taken place on an adjourned hearing, the provisions of , Order 9, Rule 8, could be applied only to a case i covered by Order 17, Rule 2, and the present case being a case contemplated by Rule 2 of Order 17 and not one contemplated by Rule 3 of the said Order, the dismissal must be deemed to be under Order 9, Rule 8. The plaintiffs could, therefore, treat the dismissal as one under Order 17, Rule 2, read with Order 9, B. 8, and file an application under Order 9, Rule 9, ' Civil P.C.
11. We are, therefore, of opinion that the application under Order 9, Rule 9, Civil P.C., filed by the plaintiffs was maintainable and the lower Court was wrong in holding that it was not maintainable. Accordingly, we allow this appeal, set aside the order, dated 7th September 1946, dismissing the plaintiffs' application under Order 9, Rule 9, Civil P.C., and remand the case to the trial Court for disposal of the said application in accordance with law. The costs of this appeal will abide the ultimate result of the application.