1. This is an appeal on behalf of the plaintiffs from a decree of the Additional Subordinate Judge of Assam Valley Districts, dated January 27, 1932, by which he dismissed the plaintiffs' suit, plaintiffs who are some of the tenants of, the Bijini Raj, the defendant in the present suit, instituted a suit for several declarations. They asked in the first instance for a declaration, that (hey are entitled in accordance with local custom and longstanding usage to bring under cultivation khas patit or jungly lands, appertaining to Pergana Habraghat. They also asked for a declaration amongst others that the Garo tenants by virtue of local custom and long-standing usage have a right to cut down according to their pleasure and appropriate from the Bijni forest Sal trees, to catch fish from river Bil, etc. and grow Sal teak, etc., within the Elaka of the Bijni Estate appertaining to Pergana Habraghat. The suit was intituted so far back as in the year 1921. It was once allowed to go by default and an application under Order IX, Rule 9, Civil Procedure Code, was filed which was rejected. An appeal was preferred against that order with the result that this Court directed restoration of the suit. After the case was sent back there was a talk of compromise between the defendants, who are represented by the Court of Wards, and the plaintiffs, and proposals were made on both sides and the terms of compromise were agreed to as proposed provisionally. But it requited the sanction of the Deputy Commissioner who was on tour at that time, that is on March 11, 1931. On March 13, the terms of compromise were worked on The question of compromise by the plaintiffs who were suing in their representative capacity was considered and ultimately a joint petition of compromise was filed by the parties on March 13, 1931, but the Court deferred passing formal orders pending the sanction of the compromise by the Court of Ward?. On September 8, 1931, the defendant Bijni Raj Estate filed a petition saying that the Government had not sanctioned the compromise. After that a further event in connection with the paid suit happened to which we will presently refer. It appears that a notice was given to the parties to get ready by January 27, 1932. it was said in tie order which is dated December 3, 1931, and numbered 62 that the plaintiffs must bring their witnesses en the above date and the defendant must bring their witnesses on February 4, 1932. On January 27, 1932, the plaintiffs asked for two months' time stating that the harvest season was on and all their witnesses could not come. They stated further that they had certain religious gathering in their locality from which they could not afford to absent themselves. The Court held on the same day, that is on January 27, 1932, that both those grounds were insufficient and it seemed to the Court that on the whole there were no bona fides in the application for adjournment; and the Court accordingly dismissed the suit with costs.
2. Against this decree the present appeal has been preferred and a preliminary objection was taken to the hearing of the appeal on the ground that this was really an order under Order XVII, Rule 2 of the Cede of Civil Procedure, and as such no appeal would lie. It appears, however, from the from of the order that the Court did really make an order under Order XVII, Rule 3 of the Code, for as the decree shows that the matter was treated as if it was heard in the presence of the Headers on both sides and costs were given, in the full scale. This apparently has given rise to this appeal. As the decree is one in the form which is provided for in Order XVII, Rule 3 of the Code, there is no question that the appeal, would lie but it is also competent to the appellant to say that in circumstances like the present the proper rule applicable was Order XVII, Rule 2. In order to attract the provisions of Order XVII, Rule 3, two conditions mast co-exist. First the application for adjournment must be at the instance of the party to suit applying for the production of evidence and the second condition is that there must be some materials on which the Court can proceed to pass judgment. These are the two conditions which are necessary in order to attract the provisions of Order XVII, Rule 3, as has been pointed out in a recent decision of this Court in the case of Brojendra Nath Ganguly v. Raja Pramatha Bhusan Dev Rai Bahadur : AIR1933Cal412 , a decision to which I was a party. It appears clear, therefore, that the suit, should have been dismissed under, Order XVII, Rule 2 of the Code but apparently the form in which the order was couched misled the parties and they have failed to make an application for restoration of the suit. If a Court erroneously passes an order which may be of the nature of a decree an appeal would undoubtedly lie to this Court, but we are clearly of opinion that the order should have been made an order under Order XVII, Rule 2 in which case it would have been open to the present appellants to make an application under Order IX, Rule 9 of the Code of Civil Procedure for restoration of suit. They are apparently entitled to seek for this remedy in the present case. We have therefore, to consider here as to whether in the circumstance of the present case restoration of the suit can be made within the meaning of Order IX, Rule 9 of the Code. The Appellate Court can exercise the same power as a Court of original jurisdiction under Section 107, Clause (2) of the Cede of Civil Procedure. It becomes necessary to consider, therefore, the question as to whether there was a sufficient cause for the plaintiffs not being ready on January 27, 1932. The fact which has to be borne in mind in this connection is that there was a talk of compromise up to September 8, 1931. On the 19th the defendant staled that the Government did not sanction the compromise and as this had happened the plaintiffs for the first time asked for an adjournment, because, we think, that they were not ready on that date. It cannot be end that having regard to the circumstances that the Garo tenants live at a considerable distance from the place where the Court is situate that they could be ready within that time. At the same time we think that the suit ought not to be restored except on terms. We accordingly order that the suit should be restored on condition that the plaintiffs do pay to the defendants all the costs which have been incurred up to this date including the costs of this appeal, the hearing fee of this appeal being assessed at live gold mohurs and also on the condition that the plaintiffs do pay to the defendants a farther sum of Rs. 200 as representing the costs of the lower Court. The payment of both these costs of this Court and of the Court below must be made within one month of the arrival of the record in the lower Court. If the payment be not made within the time thus allowed, the suit will not be restored and the appeal will stand dismissed with cuts.
3. As the suit is a very old one having been commenced in 1921, we direct that the Subordinate Judge of the Assam Valley Districts should make his best endeavour to take up the case within three months from now and finish it by the end of May, 1935.
4. In the meantime we think the injunction granted by this Court's Rule No. 846(,F) of 1934, dated June 15, 1934, should continue in terms of the Rule. We think that all the Garo tenants who are represented by the plaintiffs should be restrained from cutting and appropriating Sal and other trees within the forest of the petitioners appertaining to Pergana Habraghat and from causing damage, waste and mischief periling the disposal of the suit in the lower Court. To this extent the Rule is made absolute. No order is made as to costs in this Rule.
5. There is also an application in the alternative in connection with this appeal. No order is necessary on this application in view of our decision that an appeal lies to this Court.