1. The lower Appellate Court was mistaken in refusing jurisdiction. The suit of the plaintiff applicant was really dismissed under Order IX, Rule 8, whatever the trial Court may have thought. The suit came up for hearing on the 16th of February, 1928, when it was adjourned to the 16th of March. At that time there was no order that the plaintiff was granted time to produce evidence, or to cause the attendance of his witnesses or to perform any other act necessary for the further progress of the suit. 16th March was a holiday and the case was taken up on 17th March. The plaintiff was not present on that date also and the suit ought to have been dismissed in the presence of the defendant under Order IX, Rule 8. Instead of doing so, the Court granted time to the defendant to produce his witnesses and on 19th March heard the witnesses of the defendant again in the absence of the plaintiff. When the plaintiff is persistently absent, the Court cannot decide a suit on the merits. To pass a decree under Order XVII, Rule 3 there must be circumstances which would bring the case under the provisions of that rule. In the present case all that is known is that the plaintiff was absent. There is no order granting him time to produce evidence or to perform any act. Under the circumstances though the decree purports to have been passed under Order XVII, Rule 3 it was really one under Order IX, Rule 8 and the lower Appellate Court had jurisdiction to hear the appeal from an order refusing to restore the suit. I set aside the decree of the lower Appellate Court and direct it to try Miscellaneous Appeal No. 21 of 1928 on the merits. Costs here and hitherto shall abide the result.