The court's jurisdiction to set aside an ex parte decree is not limited to cases where the party against whom the decree was passed was not served with notice of the suit. The court also has jurisdiction to set aside an ex parte decree where the party against whom the decree was passed was served with notice of the suit but failed to appear on the date fixed for hearing.

S. B. Sinha, J.- This application raises an interesting question of law with regard to the interpretation of Order 17 Rules 2 and 3 and Order 9 Rule 13 of the Code of Civil Procedure.

2. The fact of the matter lies in a very narrow compass.

3. The Opp-party filed a suit against the petitioner praying therein for a decree for a slim of Rs. 3300/-. In the said suit the petitioner appeared and filed a written statement. On 7.8.1987 one witness was examined on behalf of the opp-party and he was cross-examined on behalf of the petitioner. On the next date fixed, no-body appeared on behalf of the defendant-petitioner. On that date, (26.8.88) another witness namely D. P. Mukherjee was examined and the case was closed.

4. The learned Munsif adjourned the case fixing 2.9.88 for ex parte argument and upon hearing the counsel for the plaintiff passed a judgment on 14.9.1988.

5. The petitioner thereafter filed an application for setting aside the ex parte decree purported to be under Order 9 Rule 2 of the Code of Civil Procedure on 14.9.1988. By an order dated 3.4.1989 passed in Misc. Case No. 11 of 1988, the learned trial court dismissed the said application holding inter alia therein that the said application was not maintainable.

6. The petitioner preferred an appeal against the said order before the Judicial Commissioner Ranchi which was registered as Misc. Appeal No. 12 of 1989. The IIIrd Additional Judicial Commissioner, Ranchi to whose court the aforementioned appeal was transferred for disposal, dismissed the said appeal. The petitioner has questioned the legality of the aforementioned two judgments in this civil revision application.

7, Mr. S. N. Rajgarhia, learned counsel appearing on behalf of the petitioner submitted that the learned courts below misdirected themselves in holding that the application under Order 9 Rule 2 of the Code of Civil Procedure was not maintainable inasmuch as in terms of Order 17 Rules 2 and 3, the trial court in the facts and circumstances of the case could have disposed of the suit only in one of the modes as provided under Order 9 of the Code of Civil Procedure.

8. The learned counsel in this connection has relied upon a decision of this court in Ramsarup Prasad v. Central Bank reported in 1981 PUR page 419 and in Parkash Chander v. Janki Manchanda reported in AIR 1987 S.C. page 42.

9. Mr. P. Ghosh, learned counsel appearing on behalf of the plaintiff opp-party, on the other hand, submitted that in this case Clause 'a' of Rule 3 of Order 17 of the Code of Civil Procedure is attracted and not Clause 'b' there inasmuch as from the records, it would appear that on 26.8.88 the counsel for the defendant-petitioner refused to proceed with the hearing of the suit in absence of the defendant. According to the learned counsel the presence 'of the advocate of a party must be deemed to be the presence of the party himself and in view of the fact that' the defendant petitioner cross examined one of the witnesses examined on behalf of the plaintiff opp-party the court had no other option but to proceed to decide the suit as if the parties were present.

10. Learned counsel in this connection has placed strong reliance in Union of India v. V. A. Venkataian reported in 1975 Madras page 123 and in Juri Lal Rungta v. Banarsi Devi reported in 1986 Allahabad page 94.

11. Order 17 Rules 2 and 3 read as follows :-

"Rule 2.-Procedure if parties fail to appear on day fixed.- Where on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.

Explanation.-Where the evidence or a substantial portion of evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the court may, in its discretion, proceed with the case as if such party were present."

"Rule 3.-Court may proceed