K.P. Singh, J. - (1.) AGGRIEVED by the order of the 1st Additional Civil Judge, Agra dated 6 -4 -1989 whereby the appellants application for setting aside Ex -pane decree has been rejected, the defendants have approached this Court under Order 43, R.1(a) C.P.C. It appears that the trial court was under the impression that the provisions of Order 17, R.3 of the Civil Procedure Code is attracted to the facts of the present case therefore, the application for setting aside Ex -pane decree is not maintainable.
(2.) THE trial court has expressed itself in the following words: Order XVII R.3 of the Code of Civil Procedure reads as below: Court may proceed notwithstanding either party fails to produce evidence, etc. 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: (a) if the parties are present, proceed to decide the suit forthwith; or (b) if the parties are, or any of them is, absent, proceed under R.2.
(3.) THE provision of Order XVII, R.3indicates that the aforesaid R.applied to the case where if the parties are present in court. Admittedly, the defendants were not present. Their counsel was accidentally present in court -room, but he had no instructions from his clients so he could not participate in the proceeding for cross -examination of the plaintiffs witness. In the facts and circumstances of this case, mere presence of the counsel in court -room would not be taken as the presence of the defendants themselves, specially, when the counsel had not been instructed on that day to appear on behalf of the defendants. Moreover, the counsel for the defendants had stated that he had no instructions as his clients had not approached him on that day. In the aforesaid circumstances, mere -presence of the counsel in the court -room cannot be treated as presence of the defendants in the court. One of the essential ingredients for the applicability of the provisions of Order XVII, R.3 is that the parties must be present when the case was called out. In this case since the counsel of the defendants was accidentally present in court -room the presiding officer could not infer that the defendants were present. We think that the trial court is not correct in holding that the order sought to be set aside, would be deemed under Order XVII, R.3 and therefore, the application was not maintainable.;