Rajiv Shakdher, J.

This is an appeal preferred against the judgement and Decree Order dated 26.07.2016, passed by the learned Single Judge in Application No.3106 of 2016 in C.S. No. 867 of 2002.

1.1. By virtue of the impugned judgment, the learned Single Judge set aside the appellant's application under Order 9, Rule 13 of the Code of Civil Procedure, 1908 (in short, "CPC").

2. Briefly, the dismissal of the appellant's application came about in the background of the following facts :

2.1. The respondents/plaintiffs had filed a suit for declaration, possession and damages qua the appellant herein. Since, the appellant failed to appear, despite being served with the summons in the suit, he was set ex-parte on 28.02.2005. Consequent thereto, the appellant moved an application before the Suit Court, being : Application No.1446 of 2005, to set aside the said order. The said application was filed on 17.03.2005. The application was allowed on 19.09.2006. As a result, the appellant filed a written statement in the suit. We are informed that the written statement was filed in September, 2006.

2.2. There is no dispute that the suit, thereafter, came up before the Court only in 2015. The respondents/plaintiffs filed their affidavit of proof on 16.06.2015.

2.3. Upon the appellant being asked to cross-examine the witnesses of the respondents/plaintiffs, the appellant's counsel informed the Suit Court that he had 'no instructions' in the matter. This occurred in and about July, 2015. Resultantly, the cross\examination of the respondents/plaintiffs' witnesses could not take place.

2.4. In these circumstances, learned Master listed the matter before the Suit Court on 14.03.2016.

2.5. The record shows that the matter was called twice on 14.03.2016, despite which, there was no representation on behalf of the appellant.

2.6. The learned Judge, thereafter, posted the matter 'for arguments', on 18.03.2016. Since, the appellant was not represented, even on the adjourned date, the learned Judge heard the matter ex-parte and passed the judgment on merits on the very same date.

2.7. The appellant, thereafter, filed, as indicated above, an application under Order 9, Rule 13 of the CPC. This application was filed on 12.04.2016. The learned Judge, however, as indicated at the outset, dismissed the application, vide the impugned judgment.

2.8. It is, in this background, the instant appeal has been filed.

3. Quite clearly, the appellant has been remiss in not prosecuting the suit with necessary diligence. Having said so, there are several issues relating to the merits of the case, which arise for consideration. We have come to this conclusion, upon perusing the pleadings filed by the parties, which are available on record.

4. Notwithstanding what is indicated hereinabove, counsels for both parties submit that expedition in the matter is required.

4.1. We propose to pass directions to expedite the suit proceedings. However, before, we do so, we may deal with one singular objection raised by Mr. V. Lakshminarayanan, in opposition of the appeal, which is that, no appeal would lie against the impugned judgment, as the application preferred under Order 9, Rule 13 of the CPC was dismissed, inter alia, on the ground that the ex-parte judgement and decree was passed on merits.

4.2. On the other hand, learned counsel for the appellant says that, since, the appellant was not present, the only course open to the Court was to proceed in accordance with the provisions of Order 17, Rule 3(b) of the CPC. And, therefore, as necessary consequence, the Court would have to proceed under Order 17, Rule 2, which, in turn, would mean that the options available to the Court were those that are contained in Order 9, Rule 6(1)(a) of the CPC.

4.3. It is based on this that the learned counsel says that the application filed under Order 9, Rule 13 of the CPC was maintainable, notwithstanding the fact that the learned Judge had decided the suit on merits.

4.4. We are inclined to accept the s