Banerji, J.:— The facts of this case are these. The plaintiff brought a suit in the Court of Small Causes at Agra to recover money due upon a bond. The defendants admitted the bond but pleaded payment, and they produce a receipt which they alleged had been granted to them by the plaintiff in discharge of the amount secured by the bond. On the date fixed for hearing they filed their written statement and prayed that the Plaintiff and his agent might be examined. The plaintiff was not personally present nor was his agent. The Court accordingly adjourned the hearing of the case and fixed the 2nd of March 1921 for the hearing of the suit, and directed the parties to appear in person on that day. On the aforesaid date the plaintiff was not present and his pleader stated that he had no instructions. In spite of this the court proceeded to try the suit in the abcence of the Plaintiff and ??? adduced by the defendant and decided in their favour and dismissed the suit. Two days afterwards the plaintiff appeared and applied to the Court to restore the case, alleging that illness had prevented his appearing on the 2nd of March 1921. This application was granted and the case was restored and heard in the presence of both parties. Evidence was taken and the Court went fully into the merits and held that the receipt produced by the defendants reland to another debt due to the plaintiff and decreed the claim in part after an examination of the account book of the plaintiff.
2. The present application has been made for revision of this decree mainly on the ground that the court below was not competent to restore the suit and to rehear it.
3. In my opinion this contention is not valid. As the plaintiff was not present and his pleader had no instructions there was default on the part of the plaintiff on the 2nd of Match 1921, and the Court could only have dismissed the suit under Order 9 Rule 8 of the Code of Civil Procedure read with Order 17 Rule 2. It is true that the rule last mentioned provides that the Court may proceed, in circumstances like those of the present case, under Order 9 Rule 8, or make any other order in the case. The other older which according to the rule could be made by the Court was an order postponing the hearing of the case. But the rule certainly does not contemplate a hearing of these on he merits in the absence of the plaintiff or his pleader. As the pleader had no instructions and the plaintiff was not personally prsent, the plaintiff must be deemed not to have appealed on the date of the hearing, and the only order which the Court could have made was an order of dismissal for default. The order passed on the 2nd of March 1921, although purporting to be an order of dismissal on the merits, was in reality and in substance an order dismissing the suit for default. The Court must be taken to have done that which it could only do under the provisions of the law. Therefore the court below was entitled under Order 9 Rule 9 to restore the case to it original number and to rehear it on the merits. It has considered the case fully on the merits and has come to a decision in favour of the plaintiff. There has been no fail ire of justice in this case and I see no reason to interfere in revision. The application is dismissed with costs.
4. Application dismissed.