1. These are two applications for revision filed by the plaintiff. The essential facts are these. The suit, which had been instituted in March 1936, came up before the Court below on 1st December 1936, On that date an application was made on behalf of defendants 4 and 5 praying for adjournment on the ground that defendant Misri Singh was ill with smallpox. The adjournment was granted subject to the payment of Rs. 90 as costs of the plaintiff and 25th February 1937 was fixed for final hearing. The sum of Rs. 90 was paid. When the case came up on 25th February 1937 a joint application was made on behalf of the plaintiff and Misri Singh, defendant, stating that negotiations for a compromise between the parties were proceeding and asking for another date. The Court fixed 19th March 1937 for the filing of the deed of compromise. On 19th March 1937, both the parties appeared before the Court and stated that the negotiations for a compromise had fallen through and requested the Court to fix a date for the final hearing of the suit. The Court accordingly fixed 8th and 9th July 1937 for final hearing. On 8th July 1937 there was no presiding officer in the Court because the officer who had so far held charge had been transferred and the new officer had not yet arrived. The matter accordingly remained pending. When the new presiding officer had arrived the case was put up before him on 15th July 1937 and he ordered that 18th and 19th August 1937 be fixed for final hearing and this order was communicated to the parties. On 18th August 1937 the plaintiff appeared but neither the defendants nor their counsel appeared. The Court proceeded to examine such witnesses as the plaintiff produced and decreed the suit. Subsequently two applications for the setting aside of the decree, on the footing that it was an ex parte decree as contemplated in Order 9, Rule 13 of the Code, were made by two defendants within the time allowed by him. These applications have been granted by the Court below and the decree has been set aside subject to the payment by the defendants of the sum of Rs. 32 as costs to the plaintiff. The two applications for revision have been filed by the plaintiff against the order granting these applications.
2. The contention raised by the learned Counsel for the plaintiff-applicant is that the suit had been decreed in accordance with the provisions of Order 17, Rule 3 of the Code, that therefore there was no ex parte decree and no application under Order 9, Rule 13 lay, and that consequently the order passed by the Court below is without jurisdiction. It is pointed out by learned Counsel that the Court when decreeing the suit on 18th August 1937 remarked in its judgment that the suit was being decided under Order 17, Rule 3, Civil P.C. The Court below has however rightly pointed out that there never was any occasion for the application of the provisions of Order 17, Rule 3 when the case came up for final hearing on 18th August 1937. O.17, Rule 3 runs thus:
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 prosecution 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.
3. It is thus necessary that time should have been granted to a party
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 prosecution of the suit,
and that party should have failed without reasonable excuse to take the step for which time had been allowed. It seems to us clear from the facts stated above that the Court bad not granted time to the defendants for any of the purposes mentioned in this Rule, and it cannot therefore be said that the defendants had failed to take any step for which time had been allowed. Order 17, Rule 3 therefore never came into play. 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. That the Court was labouring under a misapprehension is clear from its remarks in its judgment dated 18th August 1937.
Today the defendants absented though last time they took time to file a compromise. The suit is therefore decided today under Order 17, Rule 3, Civil P.C.
4. 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. Learned counsel has referred to the case in Narain Das v. Madan Mohan : AIR1939All524 . There the parties had applied jointly praying that a date, other than the one already fixed, be fixed to enable the parties to have sufficient time to summon and produce witnesses. The Court had acceded to that request. On the date thus fixed the plaintiff failed to appear, and the Court proceeded under Order 17, Rule 3. The point that was raised in that case was that inasmuch as the application for altering the date of hearing had been filed by both the parties and as time had been granted to both of them, Rule 3 was not applicable. This contention was not accepted. The case is not applicable to the facts of the present case. Learned counsel has also referred to Sheo Pujan Kalwar v. Bishnath Kalwar : AIR1939All642 . The facts of that case were these: The date fixed for final hearing 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. An application for setting aside the ex parte decree was made and was granted. Thereupon a revision was filed in this Court and it was contended that although the Court had described its decree as being an ex parte decree, yet on the facts the Court must be taken to have proceeded under Order 17, Rule 3 of the Code and that therefore no application under Order 9, Rule 13 lay. This contention was upheld. It is clear from the facts stated above that it was a case to which Order 17, Rule 3 applied in terms. It is noteworthy that the mere fact that the Court, when decreeing the suit, had remarked that it was proceeding ex parte and was passing an ex parte decree was not held to be a bar to the contention of the plaintiff that on the facts the true position was that the case had been heard and decided under the provisions of Order 17, Rule 3. The case before us is a converse case. We hold that the Court below was perfectly right in coming to the conclusion that on the facts 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. These applications for revision therefore fail and are dismissed with costs.