A suit cannot be deemed to have been decided on merits if the application for adjournment is rejected and the defendants are not present when the suit is decreed.

( 1 ) IN this revision the only point which requires consideration is whether the case should be deemed to have been decided on merits as held by the trial Court or it should be deemed to have bean decided ex parte.

( 2 ) IT appears that the case was fixed for final hearing for the first time on April 1, 1959. On that date the defendants made an application for adjournment. The Court did not pass any order on that application and directed, that the application shall be put up after the plaintiffs evidence was recorded. After making the application for adjournment the counsel for the defendants withdrew from the case. The plaintiffs evidence was recorded and the only witness who was produced was not cross-examined. The application for adjournment was taken up and since the counsel for the defendants was not present the application was rejected and the learned Additional Munsif decreed the suit on merits. Thereafter an application under Order IX, Rule 13 was Bled and the learned Additional Munsif etawah held, that as the suit had been decided on merits, the application, for setting aside the ex parte decree was not maintainable. When the matter went in appeal the learned Civil Judge held that the suit cannot be deemed to have been decided on merits as neither Rule 2 nor Rule 3 of order XVII, Civil Procedure Code applied and the decree must be deemed to be an ex parte decree. He, therefore, allowed the appeal and set aside the decree. It is against this order that the present revision has been filed.

( 3 ) I have heard learned counsel for the parties. For the distinction which has been drawn between the application of Rules 2 and 3 of Order XVII my judgment in Rameshwar Pd. v. Rajasthan govt. , Civil Revn. No. 323 of 1958 : (AIR 1962 All 515) may be seen. In this case the facts are slightly different yet what is material in this case is that 1st April, 1959, on which date the sail: was decreed, was not an adjourned date. Learned counsel for the applicant Sri G. P. Tandon who has very ably argued the case has placed, three cases in support of his view. His contention is that the date being a date for final hearing and the defendants being. present through a counsel, though he was engaged only for the purpose of making an application for adjournment, the suit was rightly decided on, merits under paragraph 2 read with Explanation of Rule 2 of Order XVII. For this purpose he has relied upon the authorities of Jhandoo Mal and Sons v. Khalsa Singh, air 1940 All 305, Girraj Kishore v. Masleh Uddin, AIR 1952 All 198 and Din Diyal v. Sheo prasad, 1954 All LJ 368. Each of the three aforesaid cases were decided on different facts and so none of them is applicable.

( 4 ) IN the case of AIR 1940 All 305 (supra), the suit was filed on 6th April, 1936, and 11th June, 1936 was fixed for final disposal. On that date the defendant appeared through a pleader and made an application for adjournment. The case was adjourned and 30th June, 1936, was fixed for issues. On this adjourned date neither the defendants appeared nor any written statement was filed but an application for, adjournment was made which was rejected. The case was thereafter decreed and it was held that the decision of the Court must be deemed to be under Order XVII, rule 2 --Explanation, and could not be treated to be an ex parte decree which could be set aside under Order IX Rule 13 Civil Procedure Code.

( 5 ) IN the case AIR 1952 All 198 (supra), the Division Bench after considering the distinction between Rules 2 and 3 laid down that

"rule 2 applied to a case both when the adjournment has been granted at the instance of a party and also when it has been adjourned suo motu by the Court. There was, nothing in that rule to show that the suit should have been, adjourned at the instance of a party. "

This was again a case in which after adjournment suo motu 28th April, 1949, was fixed for final hearing and before that date an application for adjournment was made which was