ORDER Mithan Lal, J.
1. In this revision the only point which requires consideration is whether the case should be deemed to have been decided on merits as held by the trial Court or it should be deemed to have bean decided ex parte.
2. It appears that the case was fixed for final hearing for the first time on April 1, 1959. On that date the defendants made an application for adjournment. The Court did not pass any order on that application and directed, that the application shall be put up after the plaintiff's evidence was recorded. After making the application for adjournment the counsel for the defendants withdrew from the case. The plaintiff's evidence was recorded and the only witness who was produced was not cross-examined. The application for adjournment was taken up and since the counsel for the defendants was not present the application was rejected and the learned Additional Munsif decreed the suit on merits.
Thereafter an application under Order IX, Rule 13 was Bled and the learned Additional Munsif Etawah held, that as the suit had been decided on merits, the application, for setting aside the ex parte decree was not maintainable. When the matter went in appeal the learned Civil Judge held that the suit cannot be deemed to have been decided on merits as neither Rule 2 nor Rule 3 of Order XVII, Civil Procedure Code applied and the decree must be deemed to be an ex parte decree. He, therefore, allowed the appeal and set aside the decree. It is against this order that the present revision has been filed.
3. I have heard learned counsel for the parties. For the distinction which has been drawn between the application of Rules 2 and 3 of Order XVII my judgment in Rameshwar Pd. v. Rajasthan Govt., Civil Revn. No. 323 of 1958 : (AIR 1962 All 515) may be seen. In this case the facts are slightly different yet what is material in this case is that 1st April, 1959, on which date the sail: was decreed, was not an adjourned date. Learned counsel for the applicant Sri G.P. Tandon who has very ably argued the case has placed, three cases in support of his view. His contention is that the date being a date for final hearing and the defendants being .present through a counsel, though he was engaged only for the purpose of making an application for adjournment, the suit was rightly decided on, merits under paragraph 2 read with Explanation of Rule 2 of Order XVII. For this purpose he has relied upon the authorities of Jhandoo Mal and Sons v. Khalsa Singh, AIR 1940 All 305, Girraj Kishore v. Masleh Uddin, AIR 1952 All 198 and Din Diyal v. Sheo prasad, 1954 All LJ 368. Each of the three aforesaid cases were decided on different facts and so none of them is applicable.
4. In the case of AIR 1940 All 305 (supra), the suit was filed on 6th April, 1936, and 11th June, 1936 was fixed for final disposal. On that date the defendant appeared through a pleader and made an application for adjournment. The case was adjourned and 30th June, 1936, was fixed for issues. On this adjourned date neither the defendants appeared nor any written statement was filed but an application for, adjournment was made which was rejected. The case was thereafter decreed and it was held that the decision of the Court must be deemed to be under Order XVII, Rule 2 --Explanation, and could not be treated to be an ex parte decree which could be set aside under Order IX Rule 13 Civil Procedure Code.
5. In the case AIR 1952 All 198 (supra), the Division Bench after considering the distinction between Rules 2 and 3 laid down that "Rule 2 applied to a case both when the adjournment has been granted at the instance of a party and also when it has been adjourned suo motu by the Court. There was, nothing in that rule to show that the suit should have been, adjourned at the instance of a party."
This was again a case in which after adjournment suo motu 28th April, 1949, was fixed for final hearing and before that date an application for adjournment was made which was rejected and so it was held that the suit will be deemed to have been decided on merits. This again has no application to the facts of this case because 1st April, 1959, which was fixed in this case was not an adjourned date.
6. The last case is a Single Judge authority reported in 1954 All LJ 368 (supra). In that case also there ware several adjournments for want of time and the case was ultimately fixed for final hearing on 28th May, 1951. That again, was a case, in which there were several adjournments and so it has also no application to the present case. The present case therefore stands by itself and is one, where on the first date of final hearing the defendants made an application for adjournment which was rejected and consequently the suit could not be decided on merits either under para 2 of Rule 2 or under Rule 3 of Order XVII, Civil Procedure Code.
7. The last contention of the learned counsel is that if the defendants be deemed to be present on 1st April, 1959, when the suit was decreed it could not be an ex parte decree against the defendants and so it could not be set aside under Order IX Rule 13, Civil procedure, Cede. This contention is not quite correct, because what is required for the purpose of application of Rule 13 of Order IX is that the decree should be passed ex parte against the defendant and if it is so then it can be set aside on any one of the grounds given in that rule. Those grounds may be either that the defendant was not duly served or that he was prevented from any sufficient cause from appearing when the suit was called for hearing. The case of Rukam v. Tara Chand, AIR 1922 All 68 supports this view. The present case will be covered by the latter part and so even if it be deemed that because the defendants' counsel made an application for adjournment the defendants be deemed to be present yet their presence cannot be for the purposes of the explanation given in Rule 2. It will be a notional presence and for all intents and purposes it will amount to absence. In such a case the case would fall under paragraph 1 of Rule 2, Order XVII, and the decision would be an ex parte decision and is liable to be set aside on an application made under Order IX Rule 13, Civil Procedure Code. This , is actually what has been, said by the Civil Judge who set aside the decree and, restored the case.
8. There is one another point which may be mentioned here, the defendants had raised a plea that the court-fee paid was insufficient. This being a preliminary issue the trial Court should have decided that issue first before deciding the whole suit This will be done now.
9. The result is that the revision fails but in the circumstances of the case I direct the parties to hear their own costs.