- (1.) Heard learned Counsel for the parties. The scope and ambit of Explanation to Order XVII, Rule 2 of the Code of Civil Procedure, 1908 falls for determination in this appeal. As the issues are primarily legal, detailed reference to the factual aspects would be unnecessary. Factual background in a nutshell is as follows: A Civil Suit R.S. No. 269 of 1997 was filed by Baba Andaz Shah Warisi against Faizan Waris, Abbas Ali and Sharangdhar Mohan. The defendants/appellants herein appeared and filed their written statement denying the plaintiff's version and also some additional statement was given. Issues were framed on 4.12.2001 and on 11.1.2002 was fixed for final hearing. On 11.1.2002, the plaintiff sought adjournment and 15.2.2002 was fixed for final hearing. Again on 15.2.2002 and 193.2002, the plaintiff sought time and 26.4.2002 was fixed for final hearing. On 26.4.2002, 20.5.2002, 17.7.2002 and 7.8.2002, Lawyers were on strike and hence 26.8.2002 was fixed for final hearing. On 26.8.2002, the plaintiff was present, but he did not adduce any evidence, hence, the plaintiff's evidence was closed and 7.10.2002 was fixed for defendants' evidence. On 7.10.2002, the defendants sought adjournment and 22.10.2002 was fixed for defendants' evidence. On 22.10.2002, the plaintiff was absent and defendants filed their evidence through affidavit and since there was no one to cross-examine the witness, opportunity for cross-examination was closed and 29.10.2002 was fixed for arguments. On 22.10.2002, arguments were heard and 7.11.2002 was fixed for judgment and on that date, the Suit was dismissed with costs. Feeling aggrieved, a Civil Appeal No. 10 of 2003 Baba Andaz Shah versus Faizan Waris and others. The learned 4th Additional District Judge, Faizabad, while allowing the appeal, vide judgment and order dated 19.10.2006, held that the order passed by the Trial Court was ex parte order and hence the appellant/plaintiff was not granted opportunity to adduce evidence. The matter was liable to be remanded back. So, the judgment and order dated 7.11.2002 was quashed and the matter was remanded back to the Trial Court to decide the case afresh, after giving an opportunity to the appellant and to lead his evidence. Feeling aggrieved, this FAFO has been filed.
(2.) This appeal was dismissed for want of prosecution, vide order dated 24.4.2013, as the Counsel for the appellants was not present on that date. Therefore, an application for recall of the order dated 24.4.2013 [C.M. Application No. 42660 of 2013] has been preferred. As sufficient ground has been shown by the appellants' Counsel, the application is allowed and the order dated 24.4.2013 is recalled. The F.A.F.O. is restored to its original number and the parties were heard on merits.
(3.) The main question involved in the instant appeal is whether the order passed by the Trial Court is on merits or is an order passed under Order IX of the Code of Civil Procedure.;