JAGAT NARAYAN, J. - (1.) THIS is a revision application by the defendant against an appellate order of the Senior Civil Judge No. 2, Jaipur City.
(2.) THE facts which have given rise to this revision application are these. Issues were framed on 5. 4. 62 and the plaintiff closed his evidence on 6. 9. 63. THE case was adjourned to 19. 12. 63 for recording the evidence of the defendant. Before that date the defendant filed an application on 17. 11. 63 summoning the account books of the plaintiff from him. 10th January 1964 was fixed for arguments on this application. On that date the defendant withdrew his application and 12. 2. 64 was fixed for recording his evidence. On that date the court had no time and it adjourned the case to 12. 5. 64. On the adjourned date the defendant was absent and his lawyer pleaded no instructions. THE court closed the evidence of the defendant and fixed 25-564 for arguments. On 25. 5. 64 the suit was decreed against the defendant after hearing the arguments of the plaintiff. THE defendant did not appear even on 25. 5. 64. On 30. 5. 64 the defendant applied for setting aside the decree passed on 25. 5. 64 under order 9, rule 13 treating it to be an ex parte decree. This application was dismissed by the trial court on the ground that the decision was under O. 17, rule 3 and only an appeal lay against it. This order was confirmed by the appellate court. The contention on behalf of the defendant in this revision application is that the court had no jurisdiction to decide the case under order 17, rule 3 C. P. C. as before 12. 5. 64 the suit had not been adjourned at the request of the defendant. This contention is correct and the decision given by the trial court on 25. 5. 64 cannot be treated as one under order 17, rule 3. On behalf of the plaintiff it is contended that the decision was under order 17 rule 2 and the case having been decided on merits the remedy of the defendant was by way of an appeal and not by way of an application. On behalf of the defendant it was argued that the suit could not be decided on merits under order 17, rule 2 C. P. C, Reliance is placed on the decision of the Allahabad High Court in Mst. Phul Koer v. Hashmat Ullah Khan (1 ). This decision was followed by the same High Court in Ram Charan Lal v. Raghubir Singh (2) and Ram Adhin v. Ram Bharose (3 ). The latter case was followed by a Division Bench of the Lahore High Court in Madan Gopal v. Budhu (4 ). The reasoning given in the Allahabad case (1) is in the following words: - "in our opinion if the Court intends to dispose of the case where neither the plaintiff, nor the Pleader, appears on a day to which the hearing of the suit has been adjourned, it must make an order under O. IX, r. 8 It is not entitled to proceed to decide the suit on the merits merits. It is contended that the concluding words of the rule "or make such order as it thinks fit" entitle the Court to decide the case. We do not think that this is the true construction of these words. In the very next rule where it is intended that the Court should decide the suit, the words used are different. The Court is directed to ''proceed to decide the suit forthwith". In our opinion, therefore the Court below ought not to have decided the suit on the but ought, if it did not intend to give the plaintiff or her pleader any other opportunity of appearing, to have dismissed the suit for "default of appearance. " With all respect I am unable to agree with this reasoning. The wide language used goes to show that it was contemplated that the court may either decide the suit under order 9 or adjourn the case to another date or proceed to decide the case on merits as it thinks fit. It it had been intended that the suit should not be decided on merits under order 17, rule 2 then it would have been provided that the court may proceed to dispose of the suit either under order 9 or may adjourn it to another date. In Radha Kishen vs. Mst. Gaindi (5) the entire evidence of the plaintiff had been recorded, but the suit was dismissed for default under order 17 rule 2 as he was absent on an adjourned date of hearing. This Court held that in such circumstances the evidence of the defendant should have been recorded and the suit decided on merits. The effect of this decision is that a suit can be decided on merits under order 17 rule 2. This is a revision application and the question which arises for determination is only whether the court has jurisdiction to dispose of the suit on merits under order 17 rule 2 and not whether it was proper for it to do so. Similar view was taken in Subramania Othuvar v. Manusamiya Pillai (6 ). In Ruk mansa v. Shankargouda (7) and Tulsiram v. Sitaram (8) it was expressly held that the court has jurisdiction to decide the suit on merits under order 17, R. 2. The learned counsel for the applicant drew my attention to the following observation made by Beri, J. who delivered the judgment of the Full Bench in Gopi Kishan v. Ramu (9) at page 300: - "can it be said that the court may pass such other order as it thinks fit as laid down in R, 2 of O. XVII? Such an order can be no other than to adjourn the case for plaintiff's absence in a situation such as this. " The sole question which arose for decision in the above case before their Lordships was "if a plaintiff makes default in producing evidence and also absents himself, can a suit be decided under order 17, rule 3?" Their Lordships did not intend to decide as to whether a suit can be disposed of on merits under order 17, rule 2 C. P. C. I have carefully gone through the judgment of Full Bench. Nothing was held in that case which might affect the decision of this Court in Radhan Kishen Vs. Mst. Gaindi (5 ). Their Lordships referred to the two divergent lines adopted on the question of the applicability of rules 2 and 3 of order 17. According to the Madras view these two rules are mutually exclusive and so if a party is absent rule 2 is applicable and therefore rule 3 cannot be applied according to this view. The Calcutta view on the other hand is that no decision on merits can be given under order 17, rule 3 in the absence of sufficient evidence. This Court did not accept either of these two views and based its decision on the plain wordings of order 17, rule 3.
(3.) IN interpreting order 17 rule 2 also the wordings used by the Legislature should in my opinion be given full effect. These wordings are sufficiently wide to enable the court to decide the case on merits. If a suit is decided on merits under O. 17, rule 2 then the remedy of the aggrieved party is by way of an appeal under sec. 96 of the Code of Civil Procedure and no application under order 9, rule 13 is maintainable. I would however like to emphasise that it is the duty of the court to exercise judicial discretion under order 17, rule 2 C. P. C. and decide the case under order 9 or adjourn it or decide it on merits having regard to. the circumstances. I accordingly dismiss the revision application. In the circumstances of the case, I direct that parties shall bear their own costs of this revision application. The stay order passed in this case is discharged. Let the record be returned to the trial court. . ;