Wanchoo, C. J.—This is a revision by Maniram who was defendant in a suit pending in the court of the Civil Judge, Ganganagar and has arisen in the following circumstances.

2. The suit was filed by Beharidas and issues were framed on the 25th of July, 1951. Thereafter, there were a number of hearings on many of which the plaintiff and witnesses were present, but the evidence could not be recorded for various reasons. Eventually, on the 21st of July, 1952, the plaintiff and his witnesses were not present. His counsel was called, but he stated that he had no instructions. Thereupon, the court closed the case for the plaintiff as he had been given many opportunities to produce his evidence. The court then proceeded to examine the defendant, and thereafter heard arguments of defendants counsel, and dismissed the suit. Then followed an application by the plaintiff for restoration. This application was allowed on the 17th of December, 1952, and the present revision is against that order.

3. The main argument on behalf of the defendant applicant is that the court had decided the suit on merits under O. XVII, r. 3 on the 21st of July, 1952, and therefore it had no jurisdiction to allow the ap

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