Das, J.:— This appeal is directed against the order of the learned District Judge of Gaya dated the 6th August 1925, by which he dismissed an application for grant of probate under the provision of Order XVII, rule 3, with costs. Now the order itself shows that the hearing of the suit had not commenced. It appears that the petitioner took time to produce his evidence from time to time. Ultimately the Court refused to grant him further time and dismissed the application; but it is to be observed that the hearing of the suit had not commenced before the learned District Judge. That being so, Order XVII, rule 3, does not apply. It is well established that Order XVII, rule 3, only applies where the hearing of a suit has commenced and an application for an adjournment is then made by one of the parties. It is also established that when, before the hearing of a suit is commenced, the plaintiff fails to appear on an adjourned date, the Court has to proceed under rules 2 and 3; that is to say it has power to dismiss the suit under Order IX, rule 8, so as to give the plaintiff an opportunity of having the dismissal set aside under Order IX, rule 9. As the matter stands, the plaintiff had no opportunity to have the order of dismissal set aside. This being so, the order of the learned District Judge must be set aside.
The result of this is that the probate case must be taken to be pending, and the learned District Judge will fix a date and then proceed with the hearing of the suit. If the plaintiff refuses or fails to appear on that date, then it will be open to him to dismiss the suit under Order IX, rule 8, of the Code. The appellant is entitled to the costs of this appeal.
Kulwant Sahay, J.:— I agree.
Appeal allowed.