Imam and Chapman, JJ.
1. This is an appeal against an order of the Subordinate Judge of Rungpore rejecting an application to set aside a decree said to have been passed ex parte. The application was made under Order IX, Rule 13 of the Code of Civil Procedure. The decree sought to be set aside was passed under these circumstances. On the day the hearing of the case commenced both the parties appeared. The case then proceeded from day to day. The plaintiff in the course of 9 days examined 14 witnesses, who were cross-examined by the defendants' pleader, and then closed his case. The defence pleader then began his case and examined one of the defendants whose cross-examination, not having been finished on the third day of his examination, stood adjourned to the next day when neither he, the witness, nor the pleader for the defence appeared. The Subordinate Judge consequently noted the case for the defence as closed and proceeded to hear the argument of the pleader for the plaintiff. There was no argument for the defendants, and the Subordinate Judge delivered his judgment decreeing the suit in plaintiff's favour.
2. The defendants made the application, out of which this appeal has arisen, for setting aside the decree alleging that it had been passed ex parte. The Subordinate Judge, relying on the case of Kader Khan v. Juggeswar Prasad Singh (1908) I.L.R. 35 Calc. 1023 held that he had no power to set aside the decree under Rule 13 of Order IX, and that the defendants' remedy lay in a review or an appeal.
3. In this appeal it has been argued for the appellant that the decree was passed ex parte. The expression ex parte has not been defined anywhere in the Code nor does it appear to have been the subject of a judicial decision for its definition. Its accepted meaning, however, according to Wharton's Law Lexicon seems to be 'a proceeding by one party in the absence of the other.' We may remark here that this accepted meaning does not help us in this case one way or the other. Rule 6 of Order IX lays down that where the plaintiff appears and the defendant does not appear when the suit is called on for hearing then if it is proved that the summons was duly served, the Court may proceed ex parte. For correctly applying this rule it is important to consider what constitutes 'appearance' of the defendant. The nature of the defendant's appearance in obedience to the summons is best explained by the language of the form, prescribed in the first schedule Appendix B, for summons to a defendant. That form directs the defendant to appear in person or by pleader duly instructed and able to answer all material questions relating to the suit, or who shall be accompanied by some person able to answer all such questions. The defendant's failure to appear in either of the ways specified would lead to the determination of the suit in his absence. The test of a defendant's 'appearance' is whether such of the requirements of the summons as relate to appearance have or have not been fulfilled. In the present case the defendants appeared by their pleader whose being furnished with due instruction cannot be doubted as he conducted the case for the defence up to the stage when he failed to attend the hearing of the case. Thus it cannot be said that the Subordinate Judge proceeded under Rule 6 of Order IX.
4. The provisions of Order IX by themselves do not apply to a vase in which the defendant has already appeared in answer to the summons but has failed to appear at an adjourned hearing of the suit. For such a case the procedure is laid down in Order XVII which deals with adjournments. Rule 2 of that Order lays down that '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;' while Rule 3 of the same Order lays down that '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 farther progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith.'
5. The distinction between the two rules is that the former rule applies to hearings adjourned at the instance of the Court, while the latter applies to hearings adjourned at the instance of a party to whom time has been allowed to do some act to farther the progress of the suit but who has defaulted. A farther distinction between the two rules has been pointed out in case of Mariannissa v. Ramkalpa Gorain (1907) I.L.R. 34 Calc. 235 that in a case where there are no materials on the record the proper procedure to follow would be that laid down in Rule 2 (Section 157 of the former Code) but if there are materials on the record, the Court ought to proceed under Rule 3 (Section 158 of the former Code). Thus to apply the procedure laid down in Rule 3 to a case there must be the presence of both the elements, viz., (i) the adjournment must hare been at the instance of a party; and (ii) there must be materials on the record for the Court to proceed to decide the suit. The presence of one without the other does not justify the application of Rule 3.
6. The question in this appeal is whether the procedure of the Subordinate Judge on the default of the defendants was under Rule 2 or Rule 3 of Order XVII. The hearing of the case was proceeding from day to day and the case stood over for the next day as the cross-examination of the witness had not been finished. The adjournment therefore was not at the instance of a party. In the circumstances, we are of the opinion that on the default of the defendants the Subordinate Judge proceeded under Rule 2 to dispose of the suit in one of the modes directed in that behalf by Order IX. That being our view we think, on the authority of the Full Bench decision in the case of Jonardan Dobey v. Ramdhone Singh (1896) I.L.R. 28 Calc. 738 that the appellant's application under Rule 13, Order IX, should have been entertained. The order of the lower Court is set aside.
7. The appeal is decreed. The Subordinate Judge will now proceed to consider if the appellants make out sufficient cause for the decree to be set aside.