1. This is an application in revision made by the defendants to a suit which was instituted by one Asghar Ali Khan. In the first instance 11th May 1934, was fixed for the putting in of a written statement by the defendants. The 22nd August 1934 was then fixed for final hearing. The case was adjourned from that date to 20th November 1934 because the Court had no time to deal with it. On 20th November 1934 the presiding officer was on leave and the suit was adjourned to 4th February 1935. On this date the presiding officer was again on leave and the suit was adjourned to 18th April 1935. Before the hearing on 4th February 1935 the plaintiff had put in an application on 24th January 1935 saying that he was in Government service in Baluchistan and that he had to return to duty and that he could not be present on 4th February. He asked that his statement might be recorded, but his application was rejected. However, as I have already mentioned, there was an adjournment on 4th February because the presiding officer was not able to be present himself. Then on 18th April 1935 the plaintiff was absent. Counsel on his behalf put in an application for adjournment, and that application was refused. The learned Munsif then proceeded to dismiss the suit for default. He also passed an order directing that certain documents put in by the defendants should be returned to them as he was not going to consider the case upon its merits. The plaintiff made an application on 29th April 1935 under Order 9, Rule 9, Civil P.C., for setting aside the order dismissing the suit. The learned Munsif dismissed this application, but there was an appeal to the District Judge and he set aside the Munsif's order and decided that the suit should be restored. It is against the order of the District Judge that the present application is made.
2. It is urged that the order dismissing the suit for default in the first instance was not an order passed under Order 9. Rule 8, Civil P.C., read with Order 17, Rule 2 of the same Code, but that it must be deemed to have been an order upon the merits. The explanation to Order 17, Rule 2, Civil P.C., is perfectly clear. It says that 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. There is no doubt that the plaintiff was represented on 18th April 1935, by an agent or pleader who made an application for an adjournment on his behalf. The plaintiff therefore could not be deemed not to have been present, that is, he could not be deemed to have failed to appear.
3. It is obvious therefore that the provisions of Order 17, Rule 2 did not apply and it follows from that that it was not open to the learned Munsif to dismiss the suit under the provisions of Order 9, Rule 9. In cases of this kind it may be, if the adjournment was granted at the instance of the party concerned, that the provisions of Order 17, Rule 3 may apply, but if the adjournment is at the instance of the Court the provisions of that rule would not apply and the position would then be that the suit would proceed as though the party concerned were present. In this case the Court should have proceeded as though the plaintiff was present. The defendants had put in written statements. The Court should have seen what points were at issue between the parties and what facts the plaintiff had to prove. If the burden of proof was upon the plaintiff, as in nearly all cases it would be, the Court should have said that the suit was dismissed because the plaintiff had failed to discharge the burden which had been cast upon him and had failed to justify the passing of a decree in his favour. This however was not done. It is obvious that the learned Munsif did not intend to decide the case upon its merits and did intend to dismiss it merely upon the ground that the plaintiff was not present, in other words, to dismiss it for default. The question then arises whether the remedy open to the aggrieved party, that is, to the plaintiff, was the remedy against the order as it stood or a remedy against the order as it should have been passed. In other words, the question is whether the plaintiff's remedy was by way of an application under Order 9, Rule 9 or by way of appeal against a decree. My attention has been drawn to the case in Ram Dulari v. Bhola 1935 ALJ 724, and to the cases in Baldeo Singh v. Chhaju Singh 1931 ALJ 646 and Manmohan Das v. Krishna Kant Malaviya 1933 ALJ 4.
4. It is unnecessary for me to discuss these rulings in any detail, but I think it has been held by this Court that the remedy which is open to a plaintiff or a defendant in circumstances of the kind with which I am dealing is a remedy by way of appeal. In other words, it has been held where the explanation to Order 17, Rule 2 applies, that the Court which dismisses a] suit or passes a decree ex parte must be deemed to have been deciding the matter upon its merits and not acting merely under the provisions of Order 9, Rule 9. There) is, of course, a possibility of arguing that' the remedy should be that against the order as it stands, but I think one reply; to this contention is that a Court which passes an order which is substantially an order upon the merits cannot take away the aggrieved party's right of appeal as against a decree merely by purporting to] act under some rule or order of the Code of Civil Procedure and to pass an order which is not subject to appeal. I should think therefore in this case that the proper remedy of the opposite party was to file an appeal against the decree and not to make an application under Order 9, Rule 9. This conclusion however does not suffice finally to dispose of the matter before me. This is an application in revision and it is necessary to consider whether the merits of the dispute justify an interference by this Court. It is to be noticed that the applicant made no objection either in the Munsif's Court or in the Court of appeal which decided the matter against him that there was any objection upon the ground of jurisdiction. This present dispute has been pending now for nearly a year and it was not till the question was raised in this Court that the parties were at issue upon the point whether the plaintiff had taken the right course or not.
5. We have then further to consider what the position of the plaintiff was. His suit had been pending for a long time and had been adjourned again and again through no fault of his. He was certainly employed in Government service in Baluchistan and it must have been extremely inconvenient for him to have to come to Shahjahanpur time after time to be present at the hearing of the suit. The learned District Judge has, I think, taken a very fair view of the merits of the dispute between the parties. The result of his order is merely this: that the parties will have an opportunity of contesting the real questions at issue between them. If I were to interfere in revision with the order of the learned District Judge the result would probably be that the plaintiff would file an appeal against the order of the Munsif dismissing his suit and would ask for indulgence under the provisions of Section 5, Lim. Act, and I am by no means certain that he would not succeed and that the matter would not be reopened. That being so, it seems to me that it would not be consonant with principles of justice to interfere in revision in a matter of this kind. I therefore reject the application. In the circumstances the parties will pay their own costs.