Dismissal of a suit on merits under Order 17 Rule 3 CPC has the force of a decree and cannot be set aside by taking recourse to the procedure prescribed under Order 9 Rule 9 CPC. Delay in filing an application under Order 9 Rule 9 CPC cannot be condoned under Section 5 of the Limitation Act, 1963.

N.L.Untwalia, J.

1. Money Suit No. 9/4 of 1962/64 was fixed for hearing in the Court of the Subordinate Judge at Barh on the 9th June, 1985. On this date, a time petition was filed by the plaintiff opposite party but that was rejected Her lawyer then intimated to the Court that he was ready and a hazri of one witness was filed The case was opened PW 1 was examined cross examined and discharged, when the opposite party was asked In produce her other witnesses her lawyer expressed his inabilitv to do so as no other witness was present in Court He again filed a time petition. That was rejected. It appears that thereafter he withdrew from the case The defendants witness was examined, but since the plaintiffs lawyer did not cross-examine him, he was discharged. Arguments were advanced ex parte on the side of the defendant. The plaintiffs lawyer did not even advance arguments. The learned Subordinate Judge, however, considered the evidence adduced before him and dismissed the suit on merits by his judgment delivered on the 12th June. 1965.

2. First Appeal No. 226 of 1965 has been filed in this Court by the opposite party on the 13th July, 1965, from the judgment and decree, dated the 12th June, 1966, of the Court below by which it has dismissed the suit. Two days later, that is, on the 15th July. 1965, the opposite party filed an application under Order 9, Rule 9 of the Code of Civil Procedure, hereinafter referred to as the Code, for setting aside the dismissal of the suit and its restoration to its original file. This application, in spite of the opposition of the defendant-petitioner, has been allowed. Hence, he has come up in revision to this Court.

3. Three points have been urged in support of this application by Mr. Mazhar Hussain, learned Advocate for the petitioner: (1) that the application under Order 9, Rule 9 of the Code was not maintainable in view of the fact that the Court below had taken recourse, and quite rightly in his submission, to the procedure prescribed under Rule 3 of Order 17 of the Code; (2) that the application under Order 9, Rule 9 of the Code was barred by limitation and the learned Subordinate Judge has arbitrarily condoned the delay under Sec. 5 of the Limitation Act, 1963 ; and (3) that there was no sufficient cause for non-appearance of the opposite party and not proceeding with the hearing of the suit after examining one witness.

4. I do not propose to express any opinion of mine on the third submission made on behalf of the petitioner, as, in my opinion, that is largely a question of fact and even if I were to express an opinion of mine in that regard. I shall not be able in any event to upset the decision of the Court below in exercise of my revisional powers.

5. In my judgment however the other two contentions made on behalf of the petitioner are well grounded and have got to succeed. The hearing of the suit had commenced when the first time petition filed on behalf of the opposite party was rejected by the learned Subordinate Judge. She became ready to proceed with the case as her lawyer not only opened the case but also examined a witness who was available and present. In the midst of the hearing he withdrew from the case it is not for me to say in this civil revision whether the Court below on the facts and the circumstances of the case ought to have granted an adjournment to the opposite party because that is a matter which may fall for consideration of the Bench hearing the first appeal filed by the opposite party; but for the purpose of the disposal of the civil revision application, it is plain that the hearing of the suit had commenced. The defendants witness also was examined, and the suit was actually dismissed on merits. In that view of the matter the learned Subordinate Judge was justified in taking recourse to the procedure prescribed under Rule 3 of Order 17 of the Code and dismissing the suit on merits. The application under Order 9, Rule 9 of the Code therefore was not mai