G. C. Mathuk, J. - (1.) THE following question has been referred to this Full Bench for opinion:- "Whether a decision recorded specifical ly under O. 17, R. 3 of the Code of Civil Procedure would exclude relief under the provisions contained in Order 9 of the Civil P. C. irrespective of the question whether, in recording its decision under "R. 3, the Court acted rightly or wrongly?" The question arises in the following cir cumstances: A suit was filed by the res pondent against the appellant for rendi tion of accounts and recovery of commission. May 6, 1965, was an adjourned date of hearing. On this date, the defendant was absent and the Court recorded an order in the order sheet (English note) to the following effect:- "This is an adjourned date of hearing because the defendant had been allowed adjournment on the previous date, viz., 14-4-1965. The defendant to-day has fail ed to appear and, in my view, this suit should be heard under R. 3 of O. 17, Civil P. C. I accordingly proceed to hear the suit under O. 17, R. 3. Civil P. C." Thereafter the plaintiff's witnesses were examined and the next day was fixed for judgment. On May 7. 1965, the Court deli vered its judgment, decreeing the suit on merits. On May 20, 1865, the appellant (defendant) filed an application, praying for an order setting aside the decree, treating the decree as an ex parte decree. This application was rejected on May 21, 19(55, by the following order;- "For the reasons given in the English Note dated 6-5-1965. the suit was decided under O. 17, R. 3, Civil P. C. and, there fore, this application (under provisions not noted) for setting aside the decree is not maintainable and is hereby rejected." Against this order, the appellant (defen dant) filed an appeal" before this Court. Before the Bench hearing the appeal, the defendant-appellant contended that the decree must be taken to be an ex parte decree passed under O. 9, R. 6 read with O. 17, R. 2 and, therefore, the application to set aside the decree was maintainable under O. 9, R. 13. The respondent urged that, since the Court below acted under O. 17, R. 3, the only remedy of the appel lant was by way of an appeal against the decree. A question arose before the Bench whether it was open to it to go into the question whether O. 17, R. 3 applied to the case or O. 17, R. 2 read with O. 9, R. 6 applied. The Bench found that there was a conflict of opinion on this question between the decisions of Division Benches of this Court and it, accordingly, referred the question set out above for opinion to a Full Bench.
(2.) BEFORE examining the previous deci sions of this Court on this point, it will be convenient to refer to the relevant pro visions of law. Order 9 of the Code of Civil Procedure deals with the appearance of parties and consequence of non-appear ance on the first date fixed for the hear ing of a suit. Rule 6, inter alia, provides that, if, on this date, the plaintiff appears and the defendant does not appear, the Court may proceed ex parte if it is proved that the summons was duly served. Rule 13 confers a right on the defendant to make an application for setting aside the ex parte decree. Rule 8 provides that, if, on this date, the defendant appears and the plaintiff does not appear, the Court shall dismiss thp suit- uniess the defendant admits the claim or a part of the claim. Rule 9 confers a right on the plaintiff to apply for an order to set aside the dis missal. Order 17 deals with adjournments and the procedure at the adjourned date of hearing. Rules 2 and 3 of this Order, with which we are concerned, have been amended by this Court and, as amended, stand thus:- "Rule 2- 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 lp dispose of the suit in one of the modes directed in that behalf by O. 9 or make such other order as it thinks fit. Where the evidence, or a substantial portion of the evidence, of any party has already been recorded and such party fails to appear on such day, the Court may, in its discretion, proceed with the case as if such party were present and may dis pose of it on the merits. Explanation- No party shall be deem ed to have failed to appear if he is either present or represented in Court by agent or pleader, though engaged only for the purpose of making an application." "Rule 3- Where, in a case to which R. 2 does not apply- any party to a suit, to whom time has'been granted, fails to produce his evidence, or to cause the at tendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Ccurt may, notwith standing such default, proceed to decide the suit forthwith." The words "in a cast- to which Rule 2 does not apply" in R. 3 were added on January 17, 1963. Before the amendment, there could be a case which fell both under R. 2 and R. 3 and, in such a case, it was open to the Court to decide whether it would proceed under R. 2 or R. 3. But, after the amendment, the two rules have become mutually exclusive and, if a case falls under R. 2, it would not be open to the Court to proceed under R, 3. Learned counsel for the defendant-appellant has relied upon three decisions of Division Benches of this Court. The first case, on which he relied, is Raja Singh v. Manna Singh, AIR 1940 All 217. In this case, on the adjourned date for the hear ing of a suit, the pit intiff appeared but the defendants did not. The Court ex amined the plaintiff's witnesses and decreed the suit, stating that the suit was decided under O. 17, R. 3. The defendants filed an application under O. 9, R. 13. The application was allowed and the decree was set aside. The plaintiff came to this Court in revision and contended that, since the suit was decreed urder O. 17. R. 3, no application under O. 9, R. 13, lay. This Court held that the suit was not heard and decided in accordance with the provisions of O. 17, R. 3 and that an application for restoration under O. 9, R. 13, lay. it was observed by the Bench that the mere fact that the Court had remarked that it was acting under O. 17. R. 3 cannot make O. 17, R. 3 applicable. The second case relied on is Raliq. Ahmad v. Mohammad Shafi, AIR 1949 All 423, In this case, the plaintiffs had ex amined some of their witnesses but, on. the adjourned date of hearing, thereafter they were absent. The Court proceeded to decide the suit on merits under O. 17, R. 'A and dismissed it. The plaintiffs made an application under O, 9, R. 9, Civil P. C. but it was dismissed as not maintainable, The plaintiffs then came to this Court n appeal. It was held by a Division Bench of this Court that O. 17. R. 3 had no ap plication to the facts oi this case and that the lower Court could not proceed to decide the suit on merits. It was further held that the plaintiffs could treat the dismissal as one under O.17, R. 2 read with O. 9, R. 8 and were entitled to file an application under O. 9. R. 9. In this case, an objection was specifically raised that the question whether the Court could or could not proceed to dispose of the suit on merits under O. 17, R. 3 could not be gone into. This objection was overruled by reference to the case of AIR 1940 All 217 (Supra). The last case relied on is Qudrutullah v. Mohammad Kasim Khan, AIR 1952 All 203. In this case, on an adjourned date for further hearing, neither the defendant nor his witnesses appeared and the trial Court, after hearing arguments and con sidering the material on the record, pur ported to decide tiie case on merits under O. 17, R. 3. The der'er.dant filed an ap plication under O. 9, R. 13 for setting aside the decree but it was rejected on the ground that it was not maintainable as the decree was not an ex parte decree. Against that order, the defendant appealed to this Court. This Court held that the lower Court was bound to proceed under O. 17, R. 2 and thai, therefore, the suit must be deemed to havf: been decreed ex parte. It accordingly held that the ap plication for restoration was maintainable. The only reason, which can be gathered, from these three decisions for going behind the decision of the trial Court to proceed under Order 17, Rule 3, is that the remarks of the trial Cci:rt that it was act ing under Order 17, Rule 3 cannot make Order 17, Rule 3 applicable.
(3.) LET us now exar-iine the cases relied upon by learned counsel for the plaintiff-respondent. The first case relied upon is Sri Krishen v. Radha Kishen, AIR 1952 All 652. In this case, on the adjourned date of hearing, the plaintiffs were absent but the defendants were present. The Court proceeded under O. 17, R. 3 and dis missed the suit. The plaintiffs applied under O. 9, R. 9 for setting aside the order but the court rejected the application on the ground that the dismissal was not .for default but under O. 17, R. 3. The plain tiffs then filed an appeal in the lower ap pellate Court but the appeal was dismis sed. The plaintiffs then came to this Court In revision.This Court dismissed the revi sion. It observed: "The question whether an application for restoration is maintainable must be decided upon an interpretation of the order which the Court passes. If there is any doubt about the intention of the Court passing the order as to whether it intended to proceed under O. 17, R. 3 or O. 17, R. 2, in that case we can say that the order should be construed as one which ought to have been passed. But this cannot be done when the Court ex pressly passes an order under one of the two Rules. In that case, the aggrieved party should file an appeal against the order which is in fact a decree and not apply for restoration." Two things have to be noted about this case: The first is that this Court observed that the question whether the application for restoration was maintainable or not must be decided upon an interpretation of the Order. The second is that this Court, In fact, examined the facts and circum stances of the case and came to the con clusion that the trial Court acted rightly in proceeding under O. 17, R, 3. The next case relied upon is Faiyaz Khan v. Mithan, AIR 1954 All 222. In this case, on the adjourned date of hearing, the defendant was absent and his counsel reported no instructions. The Court proceeded under O. 17, R. 3, recorded the evidence of the plaintiff's witnesses and decreed the suit. An application by the defendant under O. 9, R. 13 was dismissed on the ground that it did not lie as the decision was on merits under O. 17, R. 3. The defendant filed an appeal before this Court. This Court noticed the conflict in the earlier decisions and observed: "We therefore, find ourselves in the somewhat embarrassing position of having to decide between conflicting decisions of this Court. With great respect we are of opinion that the view taken in the cases which we have last mentioned is to be pre ferred. We think that if the order grant ing the plaintiff a decree is actually made by the Court under O. 17, R. 3, an applica tion by the defendant under O. 9, R. 13 will not lie and that the defendant's re medy is by way of appeal or review, This view appears to us nut merely to have the merit of practical convenience - for it is important that the litigant should be in no doubt as to where his remedy lies-but sound in principle. What has to be con sidered is the power vested in the Judge who decided the suit; and if in so decid ing It,, he purported to act under O. 7, R. 3, he could have, it appears to us, no .jurisdiction under O. 9, R. 13 to set aside the decree which he had passed. His order may be wrong but so long as it stands, he has no power to alter it." This case fully supports the contention of learned counsel for the respondent. The last case on which reliance is placed, is Laxmi Chand v. Ishwar Din, 1958 All LJ 290. In this case, on the adjourned date of hearing, defendant No. 1 was ab sent. The Court proceeded under O. 17, R, 3, examined the witnesses of the plain tiff and decreed the suit. Defendant No. 1 filed an application under O. 9, R. 13 for setting aside the decree but the applica tion was rejected on the ground that it was not maintainable, as the suit was decided on merits. Against that order, a revision was filed in this Court. This Court examined the facts and circum stances of the case and came to the con clusion that the case clearly fell within the purview of O. 17, R. 3. After examin ing the previous decisions of this Court, the Bench observed: "There is thus a preponderance of opinion of this Court in favour of the view that, if the order granting the plaintiff a decree is actually made by the Court under O. 17, R. 3, in circumstances where R. 3 may be attracted and not covered by R. 2, an application by the defendant under O. 9, R. 13 will not lie. What has to be considered in such cases is the power vested in the judge who decided the suit and if in so deciding it, he purported to act under O. 17, R. 3, he could have no jurisdiction under O. 9, R. 13 to set aside the decree which he had passed." With respect, the observations appear to us to be somewhat contradictory. The first sentence seems to indicate that an ap plication under O. 9. R. 13 will not He only if the suit has been decreed under O, 17, R. 3 and the circumstances are such that R. 2 would not apply and R. 3 may be applicable. In our opinion, these cases do not reveal any decisive reason in favour of the view that where the Court speci fically proceeds under O. 17, R. 3 the order can, in no case, be treated as one under O. 17, R. 2 or C. 9. In AIR 1940 All 217 and 1958 All LJ 290 (Supra), the Benches hearing the cases actually went into the question whether the orders of the trial Court were really under O. 17, R. 3 or under O. 17, R. 2 and do not appear to have taken the extreme view. We are unable to accept the ex treme view taken in AIR 1954 All 222 (Supra). The following example would be sufficient to show why we cannot accept this view. On an adjourned date of hear ing, the plaintiff is absent and, without recording any evidence, the trial Court purports to proceed under O. 17, R. 3 and passes an order in these terms:"The syit is dismissed for dctault of the plaintiff under O. 17, R. 3." Surely, when it is brought to the notice of the Court that the dismissal could be only under O. 9, R. 8, it would not shut its eyes and refuse to entertain an application for restoration under O. 9, R. 9. The consideration men tioned by Mootham, C. J. in AIR 1954 All 222 (Supra) that ii was important that the litigant should be in no doubt as to where his remedy lies is outweighed by the consideration that, if the defaulting party is compelled to file an appeal, it will result in unnecessary delay and ex pense to the parties.;