1. This is an application in revision by the defendant against an order of the learned Civil Judge, Bikaner, dated 17-4-1957, It came for hearing before one of us on 30-11-1959, and since it was referred to a division bench, it has come before this Court today.
2. The facts giving rise to it are that the opposite party filed a money suit against the petitioner. The petitioner contested that suit and hence issues were framed on 17-8-1956 and 8-10-1956 was fixed for the production of the plaintiff's evidence. On the last mentioned date it was found that the summonses which were issued for the plaintiff's witnesses were not received after service and, therefore, the case was adjourned to 26-11-1956. On 26-11-1956, when the case was called out, neither the plaintiff nor her counsel was present in the court. The learned Civil Judge, therefore, wrote out on the order-sheet that the case would be disposed of proceeding under Order 17, Rule 2 read with Order 9 C. P. C. At the same time, it was added that the case would be disposed of early on merits.
After the above order was passed, an application was presented on behalf of the defendant to record his evidence. Thereupon, the court recorded the statement of the defendant and dismissed the suit. On the same day, learned counsel for the plaintiff presented an application for restoration of the suit. It was contested by the defendant on the ground that it was not maintainable as the court had proceeded to dispose of the case under Order 17. Rule 3 and not under Order 17, Rule 2 C. P. C. This objection was turned down by the court and the restoration application was allowed. It is against this order that the present revision application has been filed.
3. It has been urged by learned counsel for the petitioner that it was incorrect on the part of the trial court to say that it had disposed of the case under Order 17, Rule 2 C. P. C. It is pointed out that the trial court had decided the case on merits and, therefore, the only remedy open for the plaintiff was to file an appeal and the trial court had no jurisdiction left to entertain an application for restoration of the case. In support of his argument, learned counsel has referred to Moolraj v. Narsingh Das ILR (1953) 3 Raj 1038. In that case it was held that
'where the court purports to decide a case on the merits and passes a decree, it is open to a party to appeal, even though on consideration of the facts and circumstances, the appellate court may come to the conclusion that the decree was not rightly passed under Order XVII, Rule 3 C. P. C.'
It may be pointed out that this observation is not helpful to the petitioner because the words used are 'it is open to a party to appeal' and it does not mean that the only remedy available to the party was by way of an appeal and that it could not present an application for restoration, even though the order passed by the trial court was really covered under Order 17, Rule 2 and it had wrongly proceeded to pass an order under Order 17, Rule 3 C. P. C.
In Moolraj's case ILR (1953) 3 Raj 1038 it was held iby this Court that the trial court ought 'to have proceeded under Order 17, Rule 2 and it was wrong on its part to refer to Order 17, Rule 3 and pass a decree on merits, but since it had proceeded under Rule 3, an appeal could lie. The ratio-decidendi of that case is that the right of appeal does not depend on what the court ought to have done but on what it actually did. What the court actually did was that it passed the decree on merits (though it should not have been done) and therefore it was held that the appeal was maintainable.
4. Learned counsel has next referred to Shanti Lal v. State, ILR (1957) 7 Raj 760: (AIR 1958 Raj 7). In that case the view taken in Surajmal v. Mr. Jawahar Bai, ILR (1953) 3 Raj 603 was approved and it was held that
'Where time has been granted to a party and he fails to appear and thus fails to produce evidence etc. it is open to the court to proceed under Rule 3, but as Rule 3 is a discretionary provision, it is also open to the court in the case of absence of a party to proceed under Rule 2. Where the court proceeds under Rule 2 the remedy under Order IX may in appropriate oases be available. But where the Court proceeds under Rule 3, the only remedy of the party is to file an appeal against the decree that is passed under Rule 3.'
Learned counsel for the petitioner places his reliance on the last portion of the above observation, but it may be pointed out that in the present case it cannot be said with certainty that the trial court had proceeded under Rule 3 and not under Rule 2. It has already been pointed out above that the trial court had really proceeded under Order 17, Rule 2 C. P. C., but later on there was some confusion in its mind and it proceeded to examine the defendant without any rhyme or reason. That position was clarified by the Civil Judge again when he decided the application for restoration.
In his decision of the restoration application, he has made it clear that he meant to proceed under Order .17, Rule 2 and that he had actually proceeded only under Order 17, Rule 2 and not under Order 17, Rule 3 C. P.C. It may be observed that in a case where the hearing of the suit is merely adjourned (i.e., when time is not granted at the oral or written request or a party) and the parties or any of them tail to appear and where the suit may be disposed of only under Order 17, Rule 2 C. P. C., the remedy of the party would be only under Order 9 C. P. C. Similarly, in a case where time has been granted to a party to a suit and it 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 and the court proceeds to determine the case under Rule 3 in the presence of that party, the only remedy open to that party will be by way of an appeal.
The difficulty arises only in those cases where a party is absent and where the court is not quite clear whether it has proceeded under Rule 2 or Rule 3 of Order 17 C. P. C. or where it commits a mistake in applying one rule where it ought to have applied the other of the two. In Banwari Lal v. Nathu Lal, ILR (1954) 4 Raj 684 it was held by this Court that
'where a Court, which should have dismissed the suit in default of plaintiff's appearance under Order XVII, Rule 2 read with Order IX, Rule 8 C. P. C., purports to pass an order under Order XVII, Rule 3, and dismisses the suit on merits, the plaintiff has two remedies open to him. He can either appeal against the decree dismissing the suit on merits taking the decision as it appealed on the record,, or can apply for restoration under Order IX, Rule 9 C. P. C. construing the order as one under Order IX, Rule 8, which was the proper order to be passed in the case'.
5. The position of law which emerges out of the decisions of this Court, referred above, may be summed up as follows:
(1) In a case, where on any day to which the hearing of the suit is adjourned (that is where the adjournment was not granted to any party to the suit) if the parties or any of them fail to appear, and the court disposes of the case under Order 17, Rule 2 the only remedy of the party is under Order 9 C. P. C.
(2) If in the above case the Court by mistake applies Order 17, Rule 3 and decides the case, when it ought to have proceeded under Order 17, Rule 2, the aggrieved party may proceed under Order 9 or tile an appeal. In other words, the plaintiff may file an application for restoration and if the court is satisfied that Rule 3 was wrongly applied and the restoration application is fit to be allowed, it may restore the case. It is also open in such a case for a party to file an appeal and it would be maintainable on the principle that the right of appeal depends on what the court actually did and not on what it ought to have done and a party should not suffer for the mistake of the court.
(3) If 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 and the party is present, and the Court proceeds to decide the case, the only remedy open is by way of appeal.
(4) In the circumstances mentioned in No. 3 even if the party is absent, the court may decide the case under Rule 3 and if the case has been so decided, the remedy of the party will be only by way of appeal but if the court has in its discretion applied Rule 2 and dismisses the plaintiff's case only for default of his appearance, he may file an application for restoration.
6. The observations made in Banwari Lal's case ILR (1954) 4 Raj 684 cover the application of the petitioner and therefore it cannot be said that the trial court was wrong in allowing the restoration application. It may be added that this case, ILR (1954) 4 Raj 684 was cited in Shanti Lal's case, ILR (1957) 7 Raj 760: (MR 1958 Raj 7) and not dissented from. Moreover, in Shanti Lal's case, ILR (1957) 7 Raj 760 : (AIR 1958 Raj 7) it was found by the Court that the trial Court had rightly proceeded to decide the case under Order 17, Rule 3 and it was on account of those facts and circumstances that it was observed that the only remedy open to the plaintiff was by way of an appeal.
7. It is also contended by learned counsel for the petitioner that the non-petitioner had not shown sufficient cause for her non-appearance on 26-11-1956 and for that reason also the trial court ought, not to have allowed the application for restoration. We have gone into the record and we find that there is no substance in this argument. Learned counsel for the non-petitioner had stated in the restoration application that the non-petitioner could not be present in the court on account of her illness and that her counsel was busy in the court of the Sub Divisional Magistrate, North. It was also stated -that the non-petitioner's counsel had appeared in the court even before the court had signed its final order. It is significant that these facts were not constroverted by the petitioner in his reply which was filed in the trial court.
The only objection taken by the petitioner in his reply was that the application for restoration. was not maintainable. The non-petitioner had also filed an affidavit in support of her plea to the effect that she was ill and that her affidavit was also not controverted. It is clear from the record of the trial court that there were good reasons for the non-petitioner's personal absence in the Court and that although her counsel was not present when the case was called out, the counsel did appear in the Court before the case was disposed of. Under these circumstances, it cannot be said that the learned Judge was wrong in allowing the restoration application.
8. We, therefore, see no good ground to interfere by way of revision and the application is herebydismissed. In view of the circumstances of the case,the parties are left to bear their own costs.