Examination of special witnesses under O. XVIII, R. 16, C. P. C. does not amount to the hearing of the suit.

1. This application in revision under S. 115 of the Civil P. C. has been referred to Division Bench for hearing. The point involved is whether an ex parte decree, passed in a suit, in which special witnesses have been examined under O. XVIII, R. 16, Civil P. C., can be set aside under the provisions of O. IX, R. 13, Civil P. C. The suit was filed in the court of Subordinate Judge, first court, Arrah in 1966 and later was transferred to the court of Additional Subordinate Judge, 3rd Court. In 1969, three witnesses were examined on behalf of the defendants, who are opposite party in this case, as special witnesses with Courts permission under O. XVIII, R. 16, C. P. C. In 1972, the case was ready for hearing, but as the defendants did not appear, an order was passed on the 10th of July, 1972, that the suit would be taken up on the next day for ex parte trial. On 11-7-1972, the ex parte hearing was taken up and was finished and on 13th July, 1972, the suit was decreed. On 20th July, 1972, the defendants filed an application under O.IX, R. 13 for setting aside the ex parte decree and on the 7th March, 1974, the prayer was granted by the impugned order. The plaintiffs have filed the present revision application alleging that the petition under O. IX, R. 13, C. P. C. was not maintainable.

2. On behalf of the petitioners it has been contended that as the defendants had examined some witnesses in the year 1969, the hearing of the case must be held to have started then, and that being the position, the decree passed in the suit cannnot be described to be an ex parte decree so as to attract the provision of O. IX. It is accepted that on the 10th and 11th July, 1972, orders had to be passed under O. XVII, R. 2, but it is said that it was open to the Court to have decided the suit on merits under that provision instead of proceeding ex parte and in the present case it should be assumed that the court below did so; and consequently it could not, later entertain an application under O. IX, R. 13.

3. The provisions of O. IX. O. XVII and O. XVIII appear to be relevant to the point under consideration. The consequence of non-appearance of a party is dealt with in O. IX. Order XVII contains the provisions relating to adjournments while O. XVIII deals with the hearing of the suit and examination of witnesses. If the defendant does not appear when the suit is called for hearing, the Court is authorised under O. IX, R. 6 to proceed ex parte. Rule 2 of O. XVII provides that if the parties or any of them fall to appear on the date of hearing of the suit, the court may proceed in accordance with the procedure as laid down in O. IX "or make such other order as it thinks fit". The latter portion of R. 2 has been construed by the learned counsel for the petitioner to empower the Court to decide on merits even in absence of the defendant, if it so chooses to do.

4. Mr. Ramji Sharan, learned counsel, appealing for the opposite party, on the other hand, has challenged this interpretation and has argued that in such a case, the Court can either proceed under O. IX or can adjourn the suit, but it is not open to it, to give a decision on merits except as contemplated by O. IX. After considering the arguments of the learned counsel and examining the language of O. XVIII, R. 16 and certain other provisions of the Code, we are of the view, that, it is not necessary in this case to decide the precise scope of the power of the Court under O. XVII, R. 2 of the C. P. C. Assuming (without deciding) in favour of the petitioner that it is open to a Court under O. XVII, R. 2 to decide a suit on merits without proceeding under O. IX, it cannot and has not been suggested that the Court has no power to dispose of the suit in a mode indicated by O. IX. In the present case, the Court passed a clear order on 10-7-1972 that the hearing of the suit would be taken up on the next day ex parte. The judgment dated 13th July, 1972 also indicates that the Court followed the pr