Malik, C.J:— This is a defendant's appeal dismissing his application for setting aside a decree dated 28th March, 1947. The plaintiff filed a suit for recovery of Rs. 8,846-5-6 on the 12th April, 1946. Summons were served on the defendant after more than one attempt. On the first date of hearing he was absent when the court directed that the proceeding against him should be ex parte. After that order the defendant applied for time to file a written statement. Again after several adjournments the written statement was khan filed and issues were framed on the 31st August, 1946. The court fixed 11th October for the final hearing of the case, but the case had to be adjourned as the court had no time and the 11th December, 1946, was fixed for final hearing. The plaintiff summoned his witnesses for that date. They were examined and after the plaintiff had closed his case the defendant was called upon to produce his witnesses. His counsel was not there and at the request of the defendant the learned Judge granted a short interval and directed that he would take up the case after lunch. After lunch the defendant filed an application that he was misled by a talk of a settlement and did not, therefore, summon his witnesses for that date. The plaintiff denied that there had been any such talk, but the learned Judge granted an adjournment on payment of costs. Costs were paid and the learned Judge directed that the case should be put up on the 28th of March, 1947, for further hearing. On that date the defendant again absented himself. He had not summoned any witnesses for that date and the learned Judge after hearing arguments and considering the material on the record purported to decide the case on the merits.
No appeal was filed against the decree dated 28th March, 1947, but an application for setting aside that order was filed under Order IX, rule 13 of the Code of Civil Procedure.
The learned Judge has held that he had no jurisdiction to set aside the order, the decree not being art ex-parte decree but a decision on the merits under Order XVII, rule 3 of the Code of Civil Procedure.
Learned judge evidently did not have a copy of the latest amendment to Order XVII. Order XVII, rule 2, as amended on the 10th July, 1943, reads 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 desarbed in that behalf by Order IX or make such other order as it thinks fit.
Where the evidence or a substantial portion of the evidence of any party had been recorded, and such party fails to appear on such date, 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 or is represented in Court by an agent or pleader, though engaged only for the purposes of making an application.”
Rule 3 was amended on the 1st July, 1944, and the Rule as originally passed by the legislature was substituted, for the amended Rule adopted by this Court. The Rule after the latest amendment reads 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 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.”
The result of these amendments is that the rulings of this Court after rules 2 and 3 had been amended are no longer good law, and the old rulings before the amendment of rule 3 become operative again. In Ram Adhin v. Ram Bharose, a Bench of this Court held that when a party is not present, the Court is bound to proceed under rule 2, and cannot proceed under the later rule 3. Several previous decisions were quoted and were discussed. As a result of these amendments and Khan of these, decisions, a suit must be deemed to have been decided ex parte, when a party fails to appear on the date fixed, and the Explanation to Order XVII, rule 2, makes it clear that no party shall be deemed to have failed to appear if he is either present or is represented in court by an agent or pleader, though engaged only for the purposes of making an application. In all other cases where the party has failed to appear the Court, if it decides to proceed to dispose of the suit, must be deemed to have decided ex parte. On the whole, we consider it is more satisfactory, as a party, who did not appear, will in that case, get an opportunity of placing materials before the Court, setting out the reasons for his absence and his inability to appear. The Court, whenever it is not satisfied that there was sufficient reason for such absence, will be doubt properly deal with the application without being functus officio and unable to decide the question even if there was good ground for absence.
We are, therefore, of opinion that the lower court was wrong in its view that it had no jurisdiction to consider the application.
We allow the appeal, set aside the order of the court below and send the case back to that court for decision of the application under Order IX, rule 13 on the merits.
The costs will abide the result.
Appeal allowed.