Wanchoo, C. J. - (1.) THIS is an appeal by Moolraj and others, who were plaintiffs, against dismissal of their suit by the Civil Judge of Jodhpur.
(2.) THE history of the case may be narrated in order to understand the point involved. THE suit was filed in April, 1951, and was based on a promissory-note. THE written Statement by the defendant respondent was filed on the 8th of February. 1952. THEreafter 17th of April was fixed for replication and framing of issues. Issues were framed on that date and the case was then fixed for hearing on the 11th of August, 1952. On that date the plaintiffs were absent. One Mr. Ranchor Das appeared on their behalf and presented an application for adjournment on the ground that Moolraj, one of the plaintiffs, was seriously ill and the other two plaintiffs who were his sons could not come in view of his serious condition. THE application was considered by the court and it pointed out that the counsel was not authorised to make that application as he did not hold a vakalat-nama from the plaintiffs. THE court further held that sufficient cause was not shown why the plaintiffs had not summoned evidence. It, therefore, dismissed the application for adjournment and went on to say that the defendant also did not want to produce any evidence and that as the burden of proof of all the issues was on the plaintiffs and they had failed to discharge it, the suit was dismissed with costs THE decree was accordingly prepared and the decree specifically says that the suit was dismissed under Order XVII, rule 3 of the Code of Civil Procedure. THE present appeal is against this decree. The first question that arises is whether the court was justified in passing the order under O. 17, R. 3 on the merits in the circumstances of this case. O. 17, R. 3 says that - "where any party to as 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. " before O. 17, R. 3 could apply, it has to be shown that time had been granted to the party for some purpose. The contention on behalf of the appellants is that they had not applied for any time to produce evidence and that 11th August was fixed in the ordinary course as the date for taking evidence. Learned counsel for the respondent contends that it must be assumed that even though there was no application by the plaintiffs at the time when the case was postponed from the 17th of April, 1952, to the 11th of August, 1952, it was done on the plaintiffs request and therefore O. 17, R. 3 applies. We find from the order-sheet of 7th March, 1952, that 17th April, 1952, was only fixed for filing replication and for framing of issues. It was not fixed for the evidence of parties. After framing issues on the 17th of April the court gave time to parties to produce their evidence and this it was bound to do under Order XV, rule 3 (2 ). Such grant of time under O. XV, R. 3 (2) in our opinion is not contemplated under O. 17, R. 3 The grant of time contemplated under Rule 3, of Order XVII is on application of the parties whether oral or written. The court, therefore, had no authority to proceed under O. 17, R. 3, C. P. C. The proper rule under which it should have proceeded was Rule 2 of Order XVII, because this was an adjourned hearing. It is then urged on behalf of the respondent that if this was an order under O. 17, R. 2, C. P. C. on appeal lies to this court and the proper procedure for the appellants was to apply under O. 9, R. 9 to the trial court. It is also stated that in fact the appellants have applied to the trial court under O. 9, R. 9 and that application is pending disposal It is submitted that once it is held that the order passed by the court below could rightly be passed only under O. 17, R. 2, no appeal would lie and only an application under O. 9, R. 9 would be entertain able. Reliance is placed on Manaklal Bhimraj vs. Mst. Phulabai (1) in this connection. In that case two appeals were pending before the High Court: one from the order dismissing the suit and the other from the order passed on an application to restore the suit. A preliminary objection' was taken to the maintainability of the appeal from the order dismissing the suit. The High Court was of the view that as the order in that case was really passed under O. 17, R. 2, no appeal lay and upheld the objection. It went on to observe that "although that be so, the other miscellaneous appeal does lie and raises the merits of the case sufficiently". We do not know what view the court would have taken if the other appeal had not been before it. We find it difficult to agree with the view that was taken in that case. On the face of it there is a judgment by the court on the merits because the court says that the burden of the issues was on the plaintiffs who had failed to discharge it and, the suit was dismissed. A decree followed which specifically said that it had been passed under O. 17, R. 3. Under the circumstances the plaintiffs had a right of appeal to this Court. It may be that on consideration of the circumstances this Court may come to the conclusion that the trial court was not right in passing a decree on the merits under O. 17, R. 3 and may set aside that order on that ground. Bat where a party appeals from the decree of the court as it is, he does so from the copy supplied to him and not from anything else. It also seems to us that if this is not so, the party would always be under the obligation of consulting counsel and trying to find out whether a particular decree was such as could be appealed from. We do not think that the framers of the Code of Civil Procedure intended that the party should make such enquiries where on the face of it there was a decree against him. We must in this connection refer to a number of cases in support of the view that we take. In Muthiah Chettar vs. Krishna Dass Varu (2) it was held that "an appeal from an order which the Judge purports to pass under O. 21, R. 10, must be entertained although that Rule does not really apply". In Nasir Khan vs. Itwari (3) there was a second appeal before the High Court and an objection was taken that the appeal did not lie. In that case there was an execution matter in which objection was taken. When the objection was dismissed by the executing court there was an appeal to the District Judge. On the date fixed for hearing of the appeal the appellant was absent and the District Judge dismissed the appeal holding that the application for execution was within time and the reasons given by the subordinate Judge for that view were good. It was urged in the High Court that the order which the District Judge passed was under O. 41, R. 16 from which no appeal lies. The remedy against an order under O. 41, R. 17 is provided by O. 41, R. 19. The learned Judges, however, repelled this contention in these words : "the right of appeal does not depend on what the court ought to have done but on what it actually did. What is actually did was to pass a decree on the merits. Against such a decree the law allows an appeal. When the appeal comes up for decision, the Appellate Court has then to decide whether the order passed was a proper order and one which the court below had jurisdiction to pass. If it decides this question in the negative, it will set the order aside. " We respectfully agree with the view taken in this case. We have been referred also to Rafiq Ahmad vs. Mohammed Shafi (4 ). In that case the view held in Nasir Khan's case (3) was considered and was certainly not disapproved. All that was pointed out was that Nasir Khan's case applied to a different set of circumstances. These circumstances were not present in the Rafiq Ahmad's case but they are present in the case before us. We are, therefore, of opinion that where the court purports to decide a case on the merits and passes a decree, it is open to a party to appeal, even though on consideration of the facts and circumstances, the appellate court may come to the conclusion that the decree was not rightly passed under O. 17 R. 3, C. P. C. Now we come to the last question whether we should set aside the decree of the court and send the case back for retrial. It has been urged that the appellants did not show sufficient cause for adjournment on the 11th August, 1952, and that, therefore, this Court should not interfere with the discretion exercised by the trial court. We have already narrated what happed on the 11th of August, 1952. We find that Shri Ranchordas, who was not representing the plaintiffs, merely appeared as a brief-holder for the plaintiffs' counsel and filed an application for adjournment. This application was unsupported by an affidavit. It was field by a counsel who was not authorised to act on behalf of the plaintiffs and under the circumstances the court disallowed the prayer for adjournment. That, however, does not mean that we are precluded from looking into the affidavit which was filed along with the appeal and which gave reasons why adjournment was sought on the 11th of August, 1952. It may be pointed out that in those cases in which the plaintiff is absent and the suit is dismissed for default, the reasons for non-appearance are always given later on when the application for setting aside the dismissal is made. The court in such cases always considers these reasons and if it is satisfied that there were sufficient reasons for non-appearance on the date fixed, it allows the application for setting aside the dismissal. The same principle, in our opinion, applies to the facts of the present case. On the date in question the plaintiffs were practically absent though some body who was not their counsel and who was holding a brief of the counsel put in appearance. We have, therefore to examine the grounds which have been given in the affidavit filed in this Court. These grounds are that Moolraj plaintiff No. 1 had been seriously ill since the 8th of May. 1952, and the other two plaintiffs who are his sons were in attendance upon him. Moolraj's condition was precarious on the 11th August, 1952, and thereabout and that is why it was not possible for him to attend to this case in court, nor was it possible for his sons to look after the case as they were looking after their father. This affidavit has been supported by a medical certificate which is to the effect that Moolraj had been suffering from renal hypertension from the 8th of May, 1952, when he got the first attack and that he got some further trouble in the nature of Ischio-rectal Abscess since 12th June, 1952, and had been confined to bed all along. The certificate is dated the 22nd of August 1952, and a further period of rest for one month was advised by the doctor concerned. We see no reason to disbelieve the affidavit and the medical certificate filed in support of it. The respondent has filed a counter-affidavit in which he says that Moolraj was not seriously ill and that his condition was not precarious on the 11th of August, 1952. We are not prepared to accept this statement of his face of the doctor's certificate. The respondent has also said in his affidavit that Vijay Raj had been visiting Jodhpur between the 8th May and the 11th of August 1952. He has not, however, mentioned when exactly Vijeyraj came to Jodhpur. If he had come in May, for example, the affidavit would still be true but would not affect the point with which we are concerned. It was urged that the plaintiffs should have summoned their witnesses, for, at any rate, there was no illness before the 8th of May 1952. It is enough to point out however, that the suit was fixed for hearing on the 11th August and there was no such desperate hurry that the witnesses should be summoned before the 8th of May. We may also point out that this suit was based on a pronote and did not require very much evidence. In these circumstances, it was possible for the plaintiffs to bring their witnesses with them. The mere fact, therefore, that the witnesses were not summoned, was not sufficient to hold that there was no sufficient cause for adjournment on the absence of the plaintiffs. When it is proved beyond doubt that the plaintiff No. 1 was seriously ill from 8th May 1952, one can understand that his sons might not have been composed enough to look after the case in July or August. They would not have worried very much about it earlier because the date fixed was 11th August. Learned counsel in this connection drew our attention to Manaklal's case (1 ). There a suit valued at about a lac of rupees was dismissed in default and the High Court refused to interfere with the dismissal on the ground that the plaintiff was ill. We must, however, point out that the facts in that case were peculiar. The main question in that case was one of adoption and 70 witnesses had already been summoned in groups on particular dates. The father of the plaintiff was present. The adoption of the plaintiff took place at the age of four and he would not really know what the facts were and the real person who knew everything was his father. It was suggested by the trial court that the counsel should consult the father if he really needed instructions, but the father was unable and perhaps unwilling to give instructions. Thereupon the court held that there was no sufficient reason for adjournment even though the plaintiff might have been ill, and dismissed the suit None of these peculiar circumstances are in the case before us. We think, therefore, that in the circumstances of this case, adjournment should be allowed on payment of costs. After taking into account the valuation of the suit, we think a sum of Rs. 250/- would be sufficient as costs in this case.
(3.) WE, therefore, allow the appeal, set aside the decree of the court below and send the case back for retrial on the merits. WE further order that the plaintiffs should pay to the defendant the sum of Rs. 250/- within two months of to-day. If they fail to do so, the appeal will stand dismissed and the suit will also remain dismissed. So far as the costs of this appeal are concerned, we order parties to bear their own costs. .;