An application for restoration under Order 9, Rule 9 of the Code of Civil Procedure is maintainable when the disposal of the suit is for default of appearance of the plaintiffs.

1. A mother and daughter, sued to set aside a decree and proceedings in execution thereof against the tarwad of which they were members. Defendants 2 and 3 in that suit were the decree-holder and auction-purchaser. The suit was contested by them. Issues were settled on 13-1-1125. The ease was posted for evidence to 30-1-1949. On that day both parties applied for adjournment. The case was accordingly adjourned to 17-2-1950 when also both parties applied for adjournment again. The case was adjourned to 5-6-1950. On that day both parties once again applied for adjournment but those applications were given a treatment different from that accorded to similar applications on the earlier occasions. The applications were rejected and the court dismissed the suit. Issue No.1 which related to whether the decree sought to be vacated was binding or not was found against the plaintiffs as no evidence was adduced notwithstanding the fact that time was taken more than once for the purpose. That issue having been thus found, the remaining issues did not arise for consideration and were not considered.

2. The plaintiffs applied for restoration of the suit on the basis that the aforesaid disposal was one under Order 9 of the Code of Civil Procedure. The plaintiffs relied upon certain grounds as for an application for restoration under that Order. The application was opposed by the contesting defendants. The first plaintiff was examined in support of the application. There was no counter evidence adduced.

3. The court below in its very short order was of the view that the judgment being one on the merits the proper course open to the plaintiffs is to file an appeal against the decree and the application was dismissed, stating "I do not think that there is sufficient ground to allow this petition."

4. The question is whether the disposal of the suit was under the provisions of Order 17, Rule 3 of the Travancore Code of Civil Procedure which provides that: -

"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 comply with any previous order 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, and whether such party is present or not, proceed to decide the suit forthwith."

or whether the disposal was under Order 9, Rule 3 of the same Code. Rule 3 of Order 17 read above gives the court a discretion to decide the case on the merits, whether the plaintiff be present or not, that is to say, even if the court could dispose of the case for default of appearance under Order 9. There is nothing in the judgment of any other paper on the record to indicate that the court either was aware of the fact that it had the discretion which it could exercise or that it exercised any discretion. It would appear as though the court was of the view that when time is taken by the plaintiff more than once to adduce evidence and there 'is a default in adducing evidence the court is bound to dispose of the case on the merits. It "appears to us that it was in this view that the court proceeded to write a judgment recording findings on issues. It is only in a case that the court exercises the discretion that is vested in it under Rule 3 of Order 17 that the disposal can be considered to be on the merits under the provisions of that rule. Ordinarily, when the plaintiff is absent the provision in Order 9 could be and should be deemed to have been, followed. If the court did exercise the discretion and considered it fit to dispose of the case under Rule 3 of Order 17, notwithstanding the absence of the plaintiff an appeal against the decree would be the proper remedy of the aggrieved party. In a case where the court exercises no discretion or is not aware that it has any discretion to exercise the mere fact that it purports to pass a judgment on the merits will not make the disposal one und