C.B. Capoor, J.C.
1. This application in revision by Bala Nand and Ram Nath is directed against an order of Shri Prem Lal Sharma Subordinate Judge Theog whereby the order dismissing the suit filed by the respondents against the petitioners and some others was set aside and the suit was restored to its original number.
2. The respondents had filed a suit against the petitioners and some others. The case was adjourned to 18-6-62 at the request of the plaintiffrespondents in order to enable them to take steps and file process fee to get service effected on someof the defendants. On the aforesaid date the plaintiff respondents did not take the requisite steps and the learned Sub-Judge dismissed the suit under Order 17, Rule 3 of C. P. C. Thereafter an application purporting to be under Order 9, Rules 4 and 9) of the C. P. C. was filed on behalf of the plaintiff respondents praying for the setting aside of the order of dismissal. Notice of this application was not issued to the petitioners or the other defendants. The learned Court was of the opinion that the suit was wrongly dismissed under Order 17, Rule 3 of C. P. C. and the appropriate provision under which it could have been dismissed was Order 9, Rule 2 of C. P. C. It, accordingly accepted the petition and restored the suit to its original number.
3. On behalf of the petitioners the following contentions have been raised:
(1) That the order of dismissal dated 18-6-62 was rightly passed under Order 17, Rule 3 of C. P. C. and an application for restoration under Order 9, Rules 4 and 9 of C. P. C. did not lie.
(2) That in any view of the case the order sought to be revised was bad in law as notice of the application filed by the plaintiff respondents under Order 9, Rules 4 and 9 of C. P. C. was not issued to them.
Point No. 1. Order 17, Rule 3 of C. P. C. reads as below:
'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, proceed to decide the suit forthwith.'
4. An order under the aforesaid rule must fulfil the following conditions:
(1) Time granted to a party to a suit either to produce evidence or to cause the attendance of his witnesses or to perform any other act necessary to the further progress of the suit.
(2) The party to whom time is granted has defaulted.
(3) Decision of the suit.
5. It is true that the words 'on merits' do not find place in the rule but there is no doubt, as will presently appear, that the intention of the Legislature was that a decision under Order 17, Rule 3 should be on merits. The word 'decision' according to Wharton's Law Lexicon Fourteenth Edition (P. 305) means a judgment. In Stroud's Judicial Dictionary Third Edition Volume I. (P. 743) it has been stated that 'decision' is a popular and pot a technical word and means little more than a concluded opinion. It does not, by itself, amount to judgment or order. According to the Webster's New! International Dictionary of the English Language Second Edition 1961 'decision' inter alia means act of settling or terminating as a controversy by giving judgment on the matter; also a determination or result arrived at after consideration, as of a question; settlement, conclusion.
6. In Rule 2 of Order 17 the words used are 'the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such order as it thinks fit'. It is significant that while in this rule the words 'to dispose of' have been used, the words used in Rule 3 are 'to decide', and secondly while this rule contemplates the passing of an order under Order 9 of C. P. C. or any other, suitable order, Rule 3 provides for a decision. A comparison of the phraseology of the two rules makes it abundantly clear that the intent of the Legislature was that if the other conditions set forth in Rule 3 are satisfied the Court may decide the suit on the merits. In this connection it may with advantage be mentioned that some of the High Courts e.g., that of Allahabad have amended Rule 3 of Order 17 and specifically added the words 'on merits' after the words 'decide the suit'. Keep-ling in view the meaning of the word 'decision' and the different phraseology used in Rules 2 and 3 there does not appear to be any doubt that the Legislature contemplated that the decision under Order 17, Rule 3 should be on merits. There is a difference of opinion on the question as to whether a suit could be decided on merits even under Rule 2 of Order 17 of C. P. C. That question does not arise in the instant case and I do not propose to express and should not be understood to have expressed any opinion thereon.
7. Adverting to the facts of the instant case lone finds that two of the conditions set forth in Rule 3 of Order 17 of C. P. C. were satisfied namely that a request was made by the plaintiff respondents to grant them time for taking steps and depositing process fee to have service effected on some of the defendants and time was granted.
8. The contestants are, however, not agreed on the question as to whether the order dated 18-6-62 was a decision on merits. On behalf of the petitioners reliance has been placed upon the case of Har Dayal v. Ram Ghulam, AIR 1944, Oudh 39. The facts of that case germane to the matter in hand were that a certain person was ordered by the Court to be added as a necessary party to a case and the case was adjourned upon payment of a sum of Rs. 50/- to the counsel for the other party and it was ordered that if costs are not paid on or before the next hearing the suit shall be struck off. The plaintiff made an application for impleading the party concerned but declined to pay the costs and the Court thereat dismissed the suit with costs. Thereafter a fresh suit was filed on the same cause of action and a question arose if it was maintainable and it was finally answered in the negative. It was held that the dismissal of the earlier suit must be deemed to be on merits and to be under Order 17, Rule 3 of C. P. C.
That case is distinguishable from the instant. The order of dismissal in the Oudh case was not relatable to any of the rules under Order 9 and was not appealed against and as such a fresh suit on the same cause of action could not lie. In the instant case on the other hand the order of dismissal passed by the learned Subordinate Judge was referable to Order 9, Rule 2 of C. P. C. Which provides for dismissal of suit where summons isbot served on defendant in consequence of plaintiff's failure to pay costs.
9. There is a conflict of judicial authority on the question as to whether where an order is erroneously passed under Order 17, Rule 3 of C. P. C the remedy of the aggrieved party is by way of appeal or review or also by an application under Order 9 of C. P. C. for the setting aside of the order, vide Faiyaz Khan v. Mithan, AIR 1954 All 222; U. Venkataratnam v. U. Apparao, AIR 1948 Mad 80; Sonaullahi v. Sultan Jan, AIR 1962 J and K 21. It may be mentioned that even in the same High Court the current of judicial authority on the question under consideration has not been uniform. In the cases Raja Singh V. Manna Singh, AIR 1940 All 217 and Rafiq Ahmad v. Mohammad Shan, AIR 1949 All 423 the view expressed was that an application under prder 9 could also lie. A different view was however taken in Nasir Khan v. Itwari, AIR 1924 All 144; Udai Ram Gopi Ram v. Raghuraj Singh Khub Chand, AIR 1944 All 211 and in the case of Faiyaz Khan, AIR 1954 All 222 (supra).
To me it seems that if an order is erroneously passed under Order 17, Rule 3 of C. P. C. and is relatable to one of the rules of Order 9 an application for the setting aside of the order also lies. In the instant case the order sought to be revised was made at a preliminary stage. Oral evidence had not been adduced till then and documentary evidence, if there was any on the record, was not taken into consideration, and the merits of the case were not considered therein. Rule 4 of Order 9, C. P. C. provides that when a suit is dismissed (under Order 9, Rule 2 plaintiff may bring fresh suit within the period of limitation or may file (application for the setting aside of the order of dismissal. The order in question could well have been passed under Order 9 Rule 2 of C. P. C. at least qua the defendants service on whom had not been effected. The application for restoration was thus maintainable.
10. The next question that arises for decision is as to whether the learned Subordinate Judge acted rightly in hearing the application for restoration without issuing a notice to the petitioners who were present on the day that the order of dismissal was made. Rule 4 of Order 9 of C. P. C. inter alia provides that if a suit is dismissed under Order 9 Rule 2 and the plaintiff applies for the setting aside of the order of dismissal the Court, if satisfied, that there was sufficient cause for the non-payment of Court-fee etc., within the time fixed, shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit. If notice of the application for restoration had been issued to the petitioners they might have successfully shown that there was no sufficient cause for default in the taking of requisite steps by the respondents, and assisted the Court in reaching a correct conclusion. Order 9, Rule 8 of C. P. C. provides for the dismissal of a suit if on the date fixed the defendant appears but the plaintiff does not appear. It has been specifically provided in Rule 9 of Order 9 of C. P. C. that if an application for the setting aside of an order of dismissal passed under Rule 8 is filed notice of it must be sent to the opposite party.
The principle underlying the aforesaid provision should be equally applicable to an application for the setting aside of an order of dismissal of a suit under Order 9 Rule 2 of C. P. C. if on the date on which the order of dismissal is passed some of the defendants are present. Different considerations might have arisen if the petitioners also had not been present either in person or through their counsel on the date fixed. I am, therefore, of the opinion, that the learned Subordinate Judge acted illegally and in any case indiscreetly in restoring the suit to its original number without issuing a notice to the respondents.
11. I, therefore, accept the application in revision with costs, set aside the order: dated 10-8-62 and remand the case to the learned Subordinate Judge with the direction that after issuing a notice of the application for restoration to the parties concerned, he should dispose of the application in accordance with law.