An application for restoration under O. 9, R. 13, C.P.C. is not maintainable if the decision of the trial court was on merit under O. 17, R. 3, C.P.C.

1. This first appeal is di­rected against the decision of the Sub­ordinate Judge 1st Class, Kulu, wherein an application for restoration under O. 9, R. 13 of the Code of Civil Procedure has been dismissed. The appellant was de­fendant in a suit filed by M/s. Firm Dasondhi Mal Kuljas Rai for specific per­formance of a contract of sale of timber and in the alternative for recovery of damages in lieu thereof. The material dates during the course of hearing com­menced from 20-9-71 when after the plaintiffs evidence was over the defendant was asked to produce his evidence on 7-10-1971.

2. On 7-10-1971 the defendant asked for adjournment and 26-10-1971 was fixed. On 26-10-1971 again the defendant asked for adjournment and 24-11-1971 was fix­ed. On 24-11-1971 the defendant again asked for adjournment and the Court ordered him to pay Rs. 15 as costs and further ordered: "If evidence is not produced by that date the defence will be struck off as the case is oldest one." On 8-12-1971 the counsel for the defen­dant stated that he had no instructions. No steps were taken for the summoning of witnesses. Perhaps the costs were also not paid. Thereafter the court ordered: "I proceed ex parte against the defen­dant as he is not taking interest at all in this case. To come up for arguments on 31-12-1971."

3. After the arguments were heard a judgment was pronounced on 19-1-1972. The evidence was considered on merit on each issue and the suit was decreed for Rs. 10,610-81 Paise. However, the learn­ed trial Judge noted that in view of his findings on several issues and for the reasons recorded he passed an ex parte decree in favour of the plaintiffs and against the defendant with costs. There­after the defendant filed an application under O. 9, R. 13 of the Code of Civil Procedure and pointed out that he was ill and that was sufficient cause for his absence on 8-12-1971 and, therefore, the decree should be set aside and the suit restored for further evidence. The cause shown by the defendant was not considered sufficient and the learned trial Judge dismissed the application for re­storation on 5-1-1973. The present appeal is filed against that order.

4. A preliminary objection has been taken on behalf of the respondent-plain­tiffs that the decision of the learned trial Judge was on merit under O. 17, R. 3 of the Code of Civil Procedure and as such the application for restoration under O.9, R.13 of the Code of Civil Procedure was not maintainable and on that ground alone the same could be rejected. It is contended on behalf of the appellant that such a plea could not be raised at the stage of appeal because the ground was not taken before the learned trial Judge and because the ground depended on a mixed question of law and fact and un­less facts are ascertained the ground it­self may not be sustainable. I am not in­clined to accept this contention on behalf of the appellant. The learned counsel re­ferred to the order-sheet of several dates regarding which a reference is made above and thereafter referred to the order made on 8-12-1971 and the subse­quent judgment pronounced by the Court. From that alone he inferred that the Court intended to decide the suit forthwith under O. 17, R. 3, C.P.C. and did decide it on merits within a reason­able time. As such the decision of the Court could not but be under O. 17, R. 3, C.P.C. and hence the decision was on merits. He did not refer to any other fact nor to any controversial question regarding fact, because the state of affairs noted down for all these dates in the order-sheet, is admitted between the parties. Therefore, the ground does not involve any disputed question of fact. It is purely legal ground and in my opinion can be raised at the stage of appeal.

5. The distinction under R. 2 and R. 3 of O. 17 is well marked. Rule 2 applies when the suit is adjourned for any date and a party fails to appear on that date. In that contingency the Court may either proceed under O. 9 or make such other orde