DAVE, J. - (1.) THIS is an application in revision by the defendant Surajmal against the order of the District Judge, Jaipur City dated the 9th April, 1951.
(2.) THE facts giving rise to it are that the opposite party Mst. Jawahar Bai filed a suit against the application in the court of the Munsif West, Jaipur City for demolition of a bath-room and for permanent injunction restraining the defendant from making any construction in the joint chowk belonging to the parties. On the 10th of December, 1949, the defendant closed his evidence and the case was adjourned for argument on the 27th December, 1949. That date turned out to be a holiday and the case was, therefore, fixed for hearing arguments on the 20th January, 1950. On this date, the defendant-appellant's learned advocate appeared in the court and requested for further adjournment on the ground that his client was not present and he considered his presence to be necessary for some reason best known to him. THE court, however, allowed this adjournment and fixed the case for hearing arguments on the 7th February, 1950. On this date, neither the defendant nor his advocate put in their appearance. THE court, therefore, proceeded to hear the arguments of the plaintiff and it delivered its judgment on the third day i. e. , the 9th February, 1950 whereby the suit was decreed. On the 18th February, 1950, the defendant presented an application requesting the court to set aside its decree under Order 9, Rule 13 of the Civil Procedure Code. THE trial court dismissed this application on the 12th May, 1950 saying that it had not passed the decree ex-parte but that it gave its judgment on merits and, therefore, Order 9 Rule 13 of the Civil Procedure Code did not apply. THE defendant went in appeal against this order but he was not successful and therefore, he has come to this court in revision against the order of the appellate court dated the 9th July, 1951. The appellant's learned advocate contends that since the defendant and his advocate were absent in the trial court on the 7th February, 1950, it should have proceeded only under Order 17, Rule 2 and not under Order 17, Rule 13 of the Civil Procedure Code. It is urged that the decree of the trial court should be deemed to have been made only under Order 17, Rule 2 of the Civil Procedure Code. In support of his argument, he has referred to the case of Uppalapati Venkataratnam vs. Uppalapati Apparao (1) (A. I. R. 1948 Madras p. 80. ). In that case it was observed that Order 17, Rule 3 applies only to cases where the parties are present. This was a case in which the plaintiff was absent and the trial court had passed its judgment after hearing the defendant under Order 17, Rule 3 of the Civil Procedure Code. It was held that the plaintiff had two remedies : (1) to appeal against the decree passed, dismissing the suit on merits, or, (2) to proceed under Order 9, Rule 9 of the Civil Procedure Code. The present is not one under Order 9, Rule 9 but the petitioner wants to invoke Order 9, Rule 13, and, therefore, the case cited above is distinguishable in this respect. The only observation which can help him and which is to be considered is whether Order 17, Rule 3 of the Civil Procedure Code applies only to cases where the parties are present and whether it would not apply in any other case. Order 17, Rule 3 runs as follows: - "where 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. " With due respect, it may be pointed out that there is nothing in the language of this rule to come to a conclusion that it would not apply in a case where one of the parties is absent and if it fails to do any of the things mentioned therein. In the cases of Bhutan Ram vs. Madan Lal (2) (A. I. R. 1947 All. p. 40.) it was held that: "while Order 17, Rule 2 mentions that it is open to the Court, on an adjourned hearing' to pass an order under Order 9, 17, Rule 3 merely says that the Court may proceed to decide the suit on the merits and does not, as an alternative, mention that it may pass an order under Order 9. The omission of reference to Order 9, in Order 17, Rule 3 is significant and leads to an inference that if the conditions mentioned in Order 17, Rule 3 are satisfied, the application of Order 9 is precluded and the only order which the Court can pass is one under Order 17, Rule 3. " I am in entire agreement with this observation. In the present case, the case was obtained at the request of the defendant-petitioner himself and yet he or his advocate failed to appear on the date which was fixed at their request. Both the parties had already concluded their evidence and the case was fixed only for hearing the arguments. It appears from the judgment of the trial court that it has considered the evidence of the defendant and given its judgment on merits after weighing and considering the evidence of both the parties. It is, therefore, not an ex-parte judgment in the sense that the court did not take into consideration the case put up by the defendant. Order 9, Rule 13 has therefore, no application to this case to my mind. The proper course for the defendant was to proceed with the case in review or in appeal. His application under Order 9, Rule 13 was misconceived and the courts below do not seem to have committed any error in dismissing it. The revision application is dismissed with costs. .;