Sulaiman, J.:— This is a defendant's application in revision from an order of the District Judge of Agra. It arises under the following circumstances:

On the 7th of July, 1923, a suit was brought in the court of the Munsif of Agra for recovery of a certain sum of money. On the 24th of July, 1923, a written statement was filed on behalf of the defendants and issues were framed. The 21st of September, 1923, was fixed for final hearing in the case, but on an application made by the plaintiffs, the date was subsequently altered to the 17th of August, 1923. On that date the defendants were absent owing to an alleged illness and produced a medical certificate. The court was prepared to adjourn the case on payment of a certain amount of costs. Readiness was expressed on behalf of the defendants to pay the amount and the court then directed that it would proceed, to hear the plaintiffs' evidence and postpone the case for the defendant's evidence. Defendant's vakil objected to this procedure and ultimately intimated that he would apply for transfer of the case from that court. A week's time was granted, but no application was made for transfer. On the 27th of August, 1923, the defendant firm, neither through any recognized agent, nor through any pleader, put in an appearance. The learned Munsif then proceeded to dispose of the suit. As the defendant had filed a written statement denying some of the allegations of the plaintiff, and issues had been framed on the pleas raised, the court was bound to consider the issues and decide them, even if the proceedings were ex parte. The operative portion of the order passed by him was in these words:—

“Suit of the plaintiff for Rs. 547-15-3 is decreed with costs and usual future interest.”

It is important to note that the judgment did not expressly say whether the Munsif proceeded under order XVII, rule 2, or order XVII, rule 3.

The defendant firm did not prefer an appeal from this decree, but filed an application under order IX, rule 13, treating this order to have been passed ex parte against them. By the time this application came up for disposal, the Munsif had been transferred and his successor dismissed the application holding that the previous order had been passed under order XVII, rule 3, and, therefore, no application for setting it aside at all lay. The defendant firm not being satisfied with this last order preferred an appeal before the District Judge. The learned District Judge entertained the appeal and heard arguments in support of the appeal, but came to the conclusion that the previous order of the 27th of August, 1923, was an order passed under order XVII, rule 3, and that, therefore, the order of the Munsif dismissing the application was quite correct. This is an application in revision from, this last order of the District Judge.

The first point which arises before us is whether a revision at all lies from the order of the District Judge. In my opinion, even if no revision lies from the order of the District Judge, it is open to us to entertain a revision from the order of the Munsif himself. So far as the order of the Munsif is concerned, I am clearly of opinion that he refused to exercise jurisdiction, provided of course it be assumed that the previous dismissal was under order XVII, rule 2, and an application to set aside the ex parte decree was preferred before him. He refused to hear the application on the ground that no application lay under order IX, rule 13. If the Munsif was wrong in his conclusion that no application lay, it is clearly a case of a refusal to exercise jurisdiction.

The next question is whether it is open to this Court to interfere in revision and set aside the order of the Munsif when an appeal lay to the District Judge and was actually dismissed by him. Section 115 would be applicable only where no appeal lies to this Court. The words are ‘in which no appeal lies thereto.’ Clearly the word ‘thereto’ refers to the High Court. It is clear that either no appeal lay to the District Judge at all or if an appeal against the order refusing to set aside an ex parte decree lay to him, then no second appeal lies to this Court. I would, therefore, be prepared to set aside the order of the Munsif, provided the contention of the applicant is correct that he has refused to exercise jurisdiction on the erroneous ground that the previous dismissal was under order XVII, rule 3.

This brings me to the real question involved in the case. I have already indicated that in the judgment pronounced by the Munsif on the 27th of August, 1923, there was no express mention as to whether he was proceeding under order XVII, rule 2, or order XVII, rule 3. It also has to be admitted that on the day when the judgment was pronounced the defendant did not appear. It is also quite clear that was a date to which the hearing of the case had been adjourned. In the absence of any express mention that the order passed by him was under order XVII, rule 3, it must be presumed that it was an order passed under order XVII, rule 2, and therefore, in deciding the case he must be deemed to have proceeded under the provisions of order IX of the Code. In this view of the matter an application to have the decree set aside as being an ex parte one would lie.

At the Bar a larger question was raised that even if the lower court had purported to pass an order under order XVII, rule 3, it must be deemed that its order was only under rule 2 because this was a case where the defendant had failed to appear. It is contended that if the defendant fails to appear then, no matter whether he also fails to produce his evidence or to cause the attendance of the witness or to perform any act necessary for the further progress of the suit for which time has been allowed, order XVII, rule 2, and not rule 3, would apply, and that rule 3 can only apply to the case where the defendant does appear and yet fails to perform any of the things mentioned in that rule. I would prefer not to express any opinion on this last question. I would only say that in the ruling of Ram Charan Lal v. Raghubir Singh , to which I was a party, there was no mention of order XVII, rule 3, in the Judgment and the court had not expressly said that it was proceeding under rule 3. In the view which I have taken of the other points in the case, which are quite sufficient to dispose of the application, I would allow this application, and, revising the order of the Munsif, dated the 29th of September, 1923, direct that the application be restored to its original number and disposed of according to law.

Mukerji, J.:— This is an application to this Court to revise the orders of the two courts below, viz., the order of the Munsif of Agra and the order of the District Judge of Agra dated respectively the 27th of August, 1923, and the 3rd of January, 1924. The application arises in the following circumstances:—

A suit was brought against the applicants who were the defendants in it. The defendants filed a written statement and a date was fixed for final hearing. On the application of the plaintiffs, another date, which was a little earlier than the date originally fixed, was fixed, viz., the 17th of August, 1923. On that date the defendants applied for an adjournment and they obtained one for a period of seven days. The learned Munsif definitely fixed that date for the disposal of the suit. On that date, which was the 27th of August, 1923, the defendants did not appear and the suit was decreed. It is a matter for consideration whether the Munsif purported to act under order XVII, rule 2, or order XVII, rule 3. I am decidedly of opinion that the learned Munsif did purport to act under order XVII, rule 3. My reasons are these. The Munsif wrote out a judgment as he would write in the case of a contested suit. He wrote out all the issues that had been raised by the defendants. He took up the issues one by one and then passed an order decreeing the suit. He nowhere said that he was treating the defendants as absent and, therefore, was passing a decree ex parte. A few days later, an application was made to the learned Munsif to set aside the decree on the ground that it had been an ex parte one. The successor in office to the Munsif, who had decided the suit, held, as I hold now, that the decree purported to have been passed on contest, in the sense that it was passed under order XVII, rule 3, and that, therefore, no application under order IX, rule 13, lay to him. Being dissatisfied with this order the defendants appealed to the District Judge. The learned District Judge affirmed the order of the Munsif, coming to the conclusion that no application under order IX, rule 13, lay in the circumstances of the case. His language, which it will be necessary to quote, is as follows:—

“The rulings… mentioned by Mulla govern the case and show that the case comes under order XVII, rule 3. It is, therefore, not possible for the decree to be set aside under order IX, rule 13”.

In this Court two points have been urged against the granting of the application in revision. First, it has been urged that no application in revision lay and, secondly, that the courts below were right inasmuch as the learned Munsif was right in making a decree under the provisions of order XVII, rule 3.

On the first point some argument was addressed as to whether any revision lay from the order of the learned District Judge. It has been urged that the learned District Judge was competent to entertain an appeal from an order passed under order IX, rule 13, of the Code of Civil Procedure and he did entertain one and that, therefore, even if he decided wrongly he decided so in the exercise of his jurisdiction and, therefore, no revision lay under section 115 of the Code of Civil Procedure. This is a subject on which a good deal has been said by different Judges in different High Courts. In this case, this is really a matter of pure academic interest. My reason for saying this is that the application in revision is directed against the Orders of both the learned Munsif and the learned District Judge. If the District Judge acted within his jurisdiction, it must be conceded that the Munsif did not and it would be open to this Court to set aside the order of the Munsif, disregarding the order of the District Judge.

Personally speaking, I am of opinion that where there is a refusal to exercise a jurisdiction which was undoubtedly possessed and there is an appeal to the District Judge and the District Judge comes to the same conclusion as the court below, an application in revision would lie against the orders of both the courts. It would be different if the District Judge came to a different conclusion from that of the first court. An appeal would lie to the District Judge only when an application would properly lie to the court of first instance under order IX, rule 18. If we look to the language of order XLIII, rule 1, clause (d), we shall find that an appeal is provided against “an order under order IX, rule 13, rejecting an application for an order to set aside the decree passed ex parte”. Where the District Judge says, in appeal, that no application lay under order IX, rule 13, it can hardly be said that he was entertaining an appeal against an order passed under order IX, rule 13. In my opinion both the Munsif and the District Judge, in a case like this, refused to exercise jurisdiction and, therefore, the orders of both the courts are liable to revision by the High Court. As I have said, the point is not free from difficulty and various opinions have been given by various Judges. I may quote in support of my view some opinions expressed at different times. To start with comes the case of Badami Kuar v. Dinu Rai which was a case decided by five learned Judge's of this Court. In that case there had been an appeal to the District Judge who confirmed the order of the Munsif and this High Court had no hesitation in entertaining an application in revision. There is the case of Vuppuluri Atchayya v. Sri Kanchumarti Venkata Seetharamachandra Rao . Here, there was a dissentient voice in the person of the third Judge, and two Judges took the same view as I take. In the case of Vishvanath Govind Deshmane v. Rambhat , there was an appeal to the District Judge who confirmed the order of the Subordinate Judge and the High Court interfered. The order of the Court was “We reverse the orders of the lower courts and direct the Subordinate Judge…” Lastly I may mention that in a recent case decided by myself sitting with Dalal, J., in Ram Adhin v. Ram Bharose , this very question was decided by us and we held that an application did lie for the revision of both the orders of the Munsif and the District Judge. I hold, therefore, that both the orders are open to revision.

Coming to the second point, I am decidedly of opinion that where a party absents himself, whether on the adjourned date or not and whether he has taken time to produce any particular evidence or not, the provisions of order XVII, rule 2, become applicable. In the language of Lindsay, J., in the case of Ram Charan Lal v. Raghubir Singh , the words “make such other order as it thinks fit” in rule 2, order XVII, do not entitle a court, in a case where one of the parties is absent, to purport to decide the case as if it were a contested suit. In Ram Adhin v. Ram Bharose Dalal, J., gave our considered opinion and I gave some additional reasons for our view. It is not necessary to repeat our views here. It would be sufficient to state that a court by purporting to decide a case before it as a contested case, where, as a matter of fact, the contest has ceased owing to the absence for the time being of a party, cannot deprive the absent party from showing to the court that he had a very good reason for his absence. He may have the very best of reasons for his absence and an appeal would be no remedy for him, because the appellate court would not be in a position to find out from the record what were the reasons of his absence. I agree, therefore, in the order proposed to be passed by my learned brother.

By the Court.— This application is allowed and the order of the Munsif, dated the 29th of September, 1923, is set aside and the application purporting to be under order IX rule 13, is restored to its original number to be disposed of according to law. Costs in nil courts will abide the event.

Application allowed.