JUDGMENT Beg, J.
1. These two appeals are filed by one Srimati Jaggo who was defendant in two suits, and whose application for restoration in the said suits was rejected by the trial Court. It appears that one Kanhaiya Lal had filed two suits against Srimati Jaggo who was the sole defendant in both the suits. In these suits, 8-7-1950, was fixed for recording evidence of the parties. On that date, the statement of one witness for the plaintiff was recorded. The Court then fixed 10-7-1950, as the next date for the hearing of the cases. On 10-7-1950, however, the plaintiff gave an application for filing a document. The Court allowed this application on payment of Rs. 25/- as costs by the plaintiff, and adjourned the cases fixing 28 and 29-9-1950, for further proceedings in the cases. On 28-9-1950, however, the defendant applied for adjournment. This application of adjournment was rejected by the Court. Her counsel, who was engaged for the sole purpose of giving the adjournment application also withdrew from the case, and thereafter the cases proceeded in the absence of the defendant or her counsel. The Court recorded the evidence of plaintiffs witnesses on 28 and 29-9-1950. On 29-9-1950, the plaintiff closed his evidence in the said cases. After that a number of dates were fixed for arguments, but for one reason or the other, the cases could not be taken up, and had to be postponed.
The Court heard arguments on 12-11-1950, and delivered its judgment on merits in the said cases on 13-11-1950. Subsequently, the defendant presented an application under Order 9 Rule 13, Civil P. C., for restoration in each of the two cases. These applications were rejected by the Court on the ground that the judgment in the two cases having been given on the merits the proper remedy of the applicant was by way of appeal and the application for restoration were not maintainable in law. Aggrieved with the said orders in the two cases, the defendant has filed these two appeals in the High Court.
2. Having heard the learned counsel for the appellant, were of opinion that these appeals should be allowed. In the present case, the Court could dispose of the case under Order 17 and the two rules that are relevant to the present case are Rules 2 and 3.
3. Learned counsel for the respondent argued that in the present case the Court was entitled to decide the suit on merits under Order 17, Rule 3, Civil P. C. We are unable to accept this contention. The important point to remember in this connection is that 28-9-1950, was not a date which was fixed at the instance of the defendant. It is admitted in the present case that this date was fixed at the instance of the plaintiff. Order 17, Rule 3 lays down as follows :
"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 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".
In the present case, it cannot be said that time was granted to the defendant to do any act on 28-9-1950. Moreover, even if time had been granted to the defendant to do any such act, if the Court wanted to take action under this provision of law, it should have proceeded to decide the suits forthwith. The Court, in the present case, did not proceed to decide the suits forthwith. Under the above circumstances, there can be no manner of doubt that in the present case the Court could not have acted under Order 17, Rule 3, C. P. C.
4. The only provision of law, therefore, under which the Court could have acted is Order 17, Rule 2, Civil P. C. Order 17, Rule 2, runs as follows:
"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".
This Court has also made an addition to this rule to the following effect:
'Where before any such day, the evidence or a substantial portion of the evidence of any party has been recorded, and such party fails to appear on such day, the Court may, in its discretion proceed with the case as if such party were present and may dispose of it on the merits".
Explanation --No party shall be deemed to have failed to appear if he is either present in person, or is represented in Court by his agent, or pleader, though engaged only for the purpose of making an application".
The result of the provision of Order 17, Rule 2, as amended by this Court, would be that the defendant would be deemed to be present in court and represented on 28-9-1950. Even though the defendant's counsel had withdrawn from the case, and in spite of the fact that the defendant's counsel was engaged only to give the adjournment application, by virtue of the amendment by this Court, the defendant must be deemed to be represented on that date. On the subsequent dates of hearing of the case, neither the counsel nor the defendant appeared in court. According to the amendment introduced by the Allahabad High Court in Order 17 Rule 2 C. P. Code the court can dispose of the suits on merits on subsequent dates only if a substantial portion of the evidence of any party has been recorded and such party fails to appear. The use of the words "such party" in the, above clause shows that the. party failing to appear should be the party whose evidence or a substantial portion of whose evidence has already been recorded by the Court. In the present case, the party that failed to appear was the defendant. The defendant had failed to appear before her evidence had started; and, accordingly, no portion of her evidence was recorded at all. The Court, therefore, could not dispose of the eases on the merits under the amended sub-clause.
5. In the present case, therefore, it was open to the Court only to take action under the provision of Order 17, Rule 2, as it originally stands in the Code of Civil Procedure. Under it, the Court could "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". The expression "such other order as it thinks fit" does not empower the Court to decide the case on the merits, vide Ram Adhin v. Ram Bharose AIR 1925 All 182(A), (Ganeshi Lal, Harnarain v. Debi Das, AIR 1925 All 267(B), and Ram Charan Lal v. Raghuber Singh AIR 1923 All 551 (C). In the present case, therefore, the orders of the Court dismissing the suits and the judgments passed therein must be treated as orders under Order IX, Rule 6, Civil P. C. read with Order 17 Rule 2, Civil P. C. In this situation, it would be open to the defendant to apply to the Court by which the ex parte decree was passed for an order to have them set aside under Order 9, Rule 13, C. P. C. The defendant did give applications under Order 9, Rule 13, Civil P. C. For the above reasons we are of opinion that these applications were maintainable in law, and the Court should have entertained the said applications and disposed of them on merits, instead of rejecting them on the preliminary ground that they did not lie at all.
6. We, accordingly, allow these appeals with costs, set aside the orders of the Court below and remand the cases to the trial Court for the decision of the applications for restoration given by the defendant in both the cases according to law. Let the record be sent down to the court below at once.