Dave, J.—This is an application in revision by the defendant against an order of the learned Civil Judge, Bikaner, dated the 17th April, 1957. It came for heating before one of us on 30th November, 1959, and since it was referred to a division bench, it has come before this Court today.

2. The facts giving rise to it are that the opposite party filed a money suit against the petitioner. The petitioner contested that suit and hence issues were framed on 17th August, 1956 and 8th Oct., 1956, was fixed for the production of the plaintiffs evidence. On the last mentioned date it was found that the summonses which were issued for the plaintiffs witnesses were not received after service and, therefore, the case was adjourned to 26th November, 1956. On 26th November, 1956, when the case was called out, neither the plaintiff nor her counsel was present in the court. The learned Civil Judge,tberefore,wrote out on the order-sheet that the case would be disposed of proceeding under O. 17. R. 2 read with O.9 C.P.C. At the same time, it was added that the case would be disposed of early on merits. After the above order was passed, an application was presented on behalf of the defendant to record his evidence. Thereupon, the court recorded the statement of the defendant and dismissed the suit. On the same day, learned counsel for the plaintiff presented an application for restoration of the suit. It was contested by the defendant on the ground that it was not maintainable as the court had proceeded to dispose of the case under O. 17 R. 3 and not under O. 17, R. 2 C.P.C. This objection was turned down by the court and the restoration application was allowed. It is against this order that the present revision application has been filed.

3. It has been urged by learned counsel for the petitioner that it was incorrect on the part of the trial court to say that it had disposed of the case under O. 17, R. 2 C.P.C. It is pointed out that the trial court had decided the case on merits and, therefore, the only remedy open for the plaintiff was to file an appeal and the trial court had no jurisdiction left to entertain an application for restoration of the case. In support of his argument learned counsel has referred to Moolraj vs. Narsingh Das{l). In that case it was held that "where the court purports to decide a case on the merits and passes a decree, it is open to a party to appeal, even though on consideration of the facts and circumstances, the appellate court may come to the conclusion that the decree was not rightly passed under O. XVII, R. 3 C.P.C.". It may be pointed out that this observation is not helpful to the petitioner because the words used are it is open to a party to appeal and it does not mean that the only remedy available to the party was by way. of an appeal and that it could not present an application for restoration, even though the order passed by the trial court was really covered under O. 17, R. 2 and it had wrongly proceeded to pass an order under O. 17, R. 3 C. P. C In Moo/rajs case (1) it was held by this Court that the trial court ought to have proceeded under O. 17, R. 2 and it was wrong on its part to refer to O. 17, R. 3 and pass a decree on merits, but since it had proceeded under R. 3, an appeal could lie. The ratio-decidendi of that case is that the right of appeal does not depend on what the court ought to have done but on what it actually did. What the court actually did was that it. passed the decree on merits {though it should not have been done) and therefore it was held that the appeal was maintainable.

4. Learned counsel has next referred to Shanti Lal vs. State (2). In that case the view taken in Surajmal vs. Mst. Jawabar Mal (3) was approved and it was held that "where time has been granted to a party and he fails to appear and thus fails to produce evidence etc. it is open to the court to proceed under rule 3, but as rule 3 is a discretionary provision, it is also open to the court in the case of absence o

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