- (1.) This is an application under Section 115 of the Code of Code of Civil Procedure against an order of the court below restoring a suit. The facts are these. On 17-1-1950, the case was adjourned at the instance of the Plaintiff on the ground that his evidence was not in attendance. On the adjourned date, namely, 21-2-1950, the Plaintiff was found absent and his counsel stated that he had no instructions. The Defendants and their counsel were present. The court, therefore, "dismissed the suit for default of the Plaintiff" with costs to the Defendants. The Plaintiff applied for restoration of the suit under the provisions of Order 9, Rule 9 of the Code. The plea taken by the other side was to the effect that the judgment of 21-2-1950 was a decision on merits and that no application for restoration lay. The court below observed that the order dated 17-1-1950 was passed in the presence of the parties and their counsel and a note of that order must be imputed to the Plaintiff, but the Plaintiff could possibly have been misled by a wrong entry in the Suits Clerk's register which indicated that the suit was listed for final hearing of 21-1-1950, information of which was given to him by his counsel, and that although the Plaintiff may be said to have been negligent in not having presented himself on 21-2-1950 and in not noting the date fixed in the case, the principles of justice and equity required; that the suit ought to be restored and heard.
(2.) The only point which has been urged before me in revision is that the case fell under Order 17 Rule 3 of the Code and not under Order 17, Rule 2 and consequently Order 9 Rule 9 did not apply. Order 17 Rule 2 as amended by this Court stands as follows: Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit. Where the evidence of a substantial portion of the evidence or any party has already been recorded, and such party faith to appear on such day, the court may in its discretion proceed with the case as if such party were present and may dispose of it on merits. Explanation: No party shall be deemed to have failed to appear if he is either present or is represented in court by an agent or pleader, though engaged only for the purpose of making an application.
(3.) Order 17, Rule 3 of the Code as amended by this Court reads as follows: Where, in a case to which Rule 2 does not apply, 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 proceed to decide the suit forthwith.;