S.P. Goyal, J. - (1.) THE suit of the Petitioner was dismissed by the learned Sub Judge 1st Class, Roopnagar and its operational portion reads as under: 5. Thereafter the case was potted for recording the evidence of the Plaintiff but despite the fact that the matter was adjourned twice, he neither turned up himself and nor did he summon any other evidence. On the last hearing, i.e. on 22nd December, 1981, his counsel Mr. J.K. Kaushal had made a statement that his client would produce the entire evidence on his own responsibility but today also the Plaintiff did not come present and nor has any diet money and process fee been deposited for summoning any other witness and in these circumstances, therefore, I proceed to pronounce the judgment against him under Order 17, Rule 2 of the Code of Civil Procedure and his suit, therefore, is dismissed. Although the order specifically says that the suit has been dismissed under Rule 2 Order 17, Code of Civil Procedure, but the learned Sub Judge has erroneously framed a decree in pursuance of this order. The Petitioner misled thereby filed an appeal which was dismissed by the learned District Judge, Roopnagar, holding that the impugned order, in fact, was an order under Rule 2, Order 17, of the Code of Civil Procedure and, therefore, not appealable. Instead of approaching the trial Court under Order 9, Rule 9 the Plaintiff has come up in this revision.
(2.) THE only argument raised by the Learned Counsel for the Petitioner was that as the decree -sheet had been prepared, the plaint of could not approach the trial Court for setting it aside under Order Rule 9, Code of Civil Procedure. It cannot be denied that the Plaintiff must have felt difficulty in construing the order of the trial Court but after the judgment of the lower appellate Court it was clear that the same was an order under Rule 2, Order 17 of the Code of Civil Procedure. Anyhow, this revision is allowed to the extent that the decree prepared by the trial Court is set aside and its order is declared to be one under Order 17, Rule 2, Code of Civil Procedure. The Plaintiff may, if so desired, now approach the trial Court for the setting aside of the exparte order. No costs.;