B.N. Maitra, J.
1. Title Suit No. 97 of 1972 was instituted by the plaintiffs-opposite parties. On the 11th December, 1974, three P. Ws. were examined. On that date, the defendant-petitioners filed an application for local inspection. It was allowed. Subsequently, that application for local inspection was rejected by the learned Munsif. Then the date was fixed for hearing of the suit. On the date fixed, the defendant made an application for adjournment. The prayer was allowed as last chance and the suit fixed on 25th July, 1975, for peremptory hearing. On that date, the plaintiff-opposite parties were present. But the defendants failed to appear. Then the learned Munsif proceeded to deliver the judgment. The suit was decreed and then, the defendant-petitioners put in an application for restoration of the suit according to the provisions of Order 9 Rule 13 of the Code of Civil Procedure. The plaintiff-opposite party raised an objection as to maintainability of the petition under Order 9 Rule 13 of the Code of Civil Procedure. The learned Munsif held that that application was not maintainable. An appeal was preferred. The appellate court took the same view and dismissed the appeal. Hence this revisional application by the defendants.
2. Mr. S. P. Roy Chowdhury has raised some important points of law. He has contended that the provisions of Rules 2 and 3 of Order 17 of the Civil Procedure Code have been amended in 1976. It is clear from Section 97 of the amending Act that such amendment is retrospective in operation. Rule 3 of Order 17 shows that if on the date fixed any party is absent or has failed to take necessary steps, then in spite of such default the Court may, (a) proceed to decide the suit forthwith, if the parties are present, and (b) if the parties are or any party is absent, proceed under Rule 2. Rule 2 has also been amended and the explanation added thereto in 1976 shows that when the evidence or a substantial portion of the evidence of any party has been recorded and he has failed to appear on the date fixed, the Court may proceed with the suit as if such party was present. It has, thus, been contended that in any view of the matter, the court should hold that the amendment made to Rules 2 and 3 of Order 17 of the Code is retrospective in operation. Consequently, the provisions of Order 9 Rule 13 of the Code apply. Reference has been made to the Full Bench decisions in : AIR1970All257 and : AIR1977MP222 to show that the words 'or make such other order as it thinks fit', appearing in Rule 2 of Order 17, do not empower the Court to dispose of the suit on the merits, but only to grant a further adjournment and if the Court does not propose to adjourn the suit, it should proceed under Order 9 of the Civil Procedure Code and dismiss the suit under Order 9 Rule 8 C. P. C., if the plaintiff does not appear and pass an ex parte decree under Order 9 Rule 6, if the defendant does not appear. It has been further contended that filing of an appeal would be useless formality and the proper remedy was to file an application for restoration, according to the provisions of Order 9 Rule 13, or to invoke the inherent power of the Court envisaged by the provisions of Section 151 of the Code of Civil Procedure. It has, thus, been urged that this Court should hold that the application for restoration filed under Order 9 Rule 13 of the Code of Civil Procedure is maintainable.
3. Mr. M. N. Ghosh, appearing on behalf of the opposite party, has joined issue and stated that even after the amendment made in 1976, the view taken by this Court should prevail. Since the defendant-petitioner failed to appear in the Court on the 25th July, 1975, and the evidence of some P. Ws. was already recorded, the Court rightly proceeded to decide the suit on the merits. So, this Court should uphold the decision of the courts below and find that the application under Order 9 Rule 13 is not tenable in law.
4. In the well-known Bench case of Tulsi Ram v. Sitaram Sri Gopal reported in (1959) 63 Cal WN 300 at p. 310, it has been stated by Chakrabarty, C. J., that if on the defendant's petition, the suit has been adjourned and on the adjourned date, the suit is decreed due to the defendant's failure to contest the same, the provisions of Order 9 Rule 13 of the Code do not apply because the suit has been decided on the merits. The provisions of Section 151 of the Code cannot be invoked. So, the question arises whether the opposite view taken by the Full Bench of the Allahabad High Court and of the Madhya Pradesh High Court can be accepted. There is no contrary decision of this Court after the aforesaid Bench decision of Tulshi Ram v. Sitaram. Hence, the contrary view taken by the other High Courts cannot be accepted.
5. Then the point arises whether such amendment made in 1976 is retrospective in operation. Mr. Roy Chowdhury has rightly contended that Section 97 (3) of the amending Act read with Sub-section (2) thereof makes it clear that the amendments made to Rules 2 and 3 of Order 17 are retrospective in operation. The provisions of Sub-section (2) have no reference to such amendment made to Rules 2 and 3 of Order 17 of 1976. Sub-section (3) says that save as otherwise provided in Sub-section (2), the provisions of the principal Act, as amended by this Act, shall be retrospective in operation in respect of every suit, proceeding, appeal or application pending at the commencement of this Act or instituted or filed after such commencement. It is, therefore, held that such amendment is retrospective in operation.
6. The amended Rule 2 and Rule 3 of of Order 17 reads as follows: --
'2. 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 Order IX or make such other order as it thinks fit.
Explanation-- Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present.
3. 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,--
(a) if the parties are present, proceed to decide the suit forthwith; or
(b) if the parties are, or any of them is, absent, proceed under Rule 2.'
7. On the 25th July, 1975, which was the date fixed for hearing, on the prayer of the defendant-petitioner, only the plaintiff-opposite parties were present. So, the case is not covered by the provisions of the amended Rule 3 (a) of Order 17. The case is covered by the provisions of Clause (b) thereof. That clause empowers the Court to proceed according to the provisions of Rule 2.
8. The Explanation to Rule 2 has no application because on the 25th July, 1975, the plaintiff-opposite parties were present. Consequently, according to the provisions of Rule 2, the Court was enjoined to dispose of the suit in one of the modes prescribed by Order IX of the Code or to 'make such order as it thinks fit.' The effect of those words read with the aforesaid Bench decision of this Court is that if there were materials on the record, the Court could pass a decree. In fact, this was done by the learned Munsif because, as already pointed out, on the 11th December, 1974, three P. Ws. were examined. Since there were materials on the record, the Court rightly proceeded to decide it on the merits.
9. Hence, the submissions made on behalf of the petitioner cannot be accepted. The Court decided not to proceed according to the provisions of Order 9 C. P. C. It could not proceed according to the provisions of Section 151 of the Code of Civil Procedure. In the circumstances discussed above, the courts below rightly held that the application for restoration filed according to the provisions of Order 9 Rule 13 of the Code was not maintainable.
10. The Rule is, therefore, discharged.
11. There will be no order as to costs.