Bapna, J. - (1.) THIS is a revision against an Order of the Additional Sub-Judge, Jodhpur, dated the 16th January, 1950.
(2.) THE non-petitioner, who is a tenant, filed a suit against the petitioners, who are landlords, for an injunction restraining them from discontinuing the electric current to the shop leased to the non-petitioner, and for damages for cutting the electric current earlier. THE defendants denied the allegations in the plaint, and after framing of the issues, the case was fixed for the plaintiff's evidence. THE plaintiff failed to produce any evidence on the date of hearing, and on his request an adjournment was granted on payment of costs. On the next date of hearing, i. e. the 12th of September, 1945, the plaintiff and his counsel were absent. THE Court closed his evidence, and the defendants, when called upon to product their evidence, did not consider is necessary to dp, so, and the case was fixed for arguments on the 6th of October, 1949. THE plaintiff filed an application for setting aside the order closing his evidence, but it was rejec-ted, and after arguments had been heard, the suit was dismissed on merits on the 25th of October, 1949. THE plaintiff filed an appeal, and the learned Civil Judge was of opinion that although the plaintiff and his lawyers were guilty of gross negligence, yet, as the plaintiff was absent on the date of hearing, the suit should have been dismissed under the provisions of Order XVII, Rule 2, and should not have been decided' on merits, as done by the lower Court. He accepted the appeal, considered the order of the lower Court to be one dismissing the suit for defaults, and directed it to be restored on payment of Rs. 25/- as costs to the defendants. THE defendants have come in revision. The order of the Additional ' Sub-Judge does not appear to be according to. law. If the decision of the trial Court was to be considered as the dismissal of the suit for default under Order XVII, Rule 2, Code of Civil Procedure, which makes the provisions of Order IX applicable to a suit after the hearing had proceeded, such an order is not open to appeal. The proper remedy for the plaintiff was to make an application for setting aside the dismissal of the suit for default, and in case such application had been rejected, there could then be an appeal under Order XLIII, Rule 1, Clause (c) of the Code. In accepting the appeal the lower Court, therefore, acted in excess of the jurisdiction vested in him, according to the view taken by it. It may, however, be observed. that the view taken by the lower Court is not correct. Under Order XVII, Rule 2, there is not only the power to dismiss a suit for default, but also to "make such other order as it thinks fit. " The Court in this case thought it it fit to adjourn the case, and to give an opportunity to the defendant's to' produce their evidence, and an oppor-tunity to both the parties address arguments. 'the decision given by the Court was, therefore, on merits, and the decision was open to appeal, and if it could be shown 'that the plaintiff was entitled to an indul-gence the Court was authorised to allow the plaintiff an opportunity to. " produce further evidence under the provisions of Order XLI, Rule 23 or 25. As it happens, the lower Court has remarked that the plaintiff and his lawyer were grossly negligent in the conduct of the case, and, therefore, there was no occasion for 'allowing any further evidence. The order of the lower Court cannot be sustained ' in law, and in setting aside the decree and remanding the case, the Court exercised a jurisdiction not vested in it by law. The revision is, therefore, accepted, the order of remand is set aside, arid the order of the trial Court restored with costs throughout. .;