( 1 ) THIS is a plaintiffs appeal against an order of the Court below rejecting the appellants application for setting aside an ex parte order dismissing his suit in the absence of the plaintiff.

( 2 ) THE facts shortly stated are as follows:

( 3 ) THE plaintiff Dildar Husain filed a suit against the defendant-respondent Abdul Moid for possession over a certain property and for accounts. A rival suit was also filed by the defendant abdul Moid for an injunction restraining the plaintiff-appellant Dildar Husain from interfering with Abdul Molds possession over the property in dispute. The two suits were consolidated and were being heard together. There was an order of injunction passed against the plaintiff Dildar husain in Abdul Moids suit. The date fixed for final hearing in the two cases was the 1st february, 1951. Two days earlier, namely, on the 30th January, 1951, in Abdul Moids suit the order of injunction had been discharged. On that date, Dildar Husain, the present plaintiff-appelant had not appeared and his counsel had stated that he had no instructions. This was in Abdul Moids suit.

( 4 ) ON the 1st February, 1951, the suit which has given rise to the present appeal was taken up for hearing, but Dildar Husain did not appear and his counsel made a statement that he had no in-structions. He made no application for adjournment. Abdul Moid was present and a statement was made on his behalf that his suit may be dismissed as it had become infructuous. The Court disposed of both the suits by one order. It dismissed Dildar Husains suit with costs and also dismissed Abdul Moids suit, but made no order as to costs.

( 5 ) IT appears that in Abdul Moids suit an, application for adjournment had been made and the 1st february, 1951, was an adjourned date. but in Dildar Husains suit it was the first date of final hearing.

( 6 ) AGAINST the order dismissing his suit, Dil-dar Husain filed an application under Order 9, Rule 9, Civil P. C. , for setting aside the order of dismissal. His case was that the order of dismissal was for default of his appearance. The Court rejected this application on the ground that although the date fixed in Dildar Husains case was not an adjourned date, the date was an adjourned date so far as Abdul Moids suit was concerned and that since the two suits were consolidated, if the date was adjourned in one suit, it would automatically operate as an adjourned date in the other suit, and that therefore, Order 17, Rule 3, C. P. C. applied to the case. It was also observed that the Court had dismissed the suit on the merits and not for default of the plaintiffs appearance. For these reasons, the plaintiffs appli-cation was dismissed.

( 7 ) WE are of opinion that the Court below was in error in holding that no application lay under order 9, Rule 9, C. P. C. to that Court. It is true that where two rival suits are consolidated and an application for adjournment is made in one suit by the plaintiff of that suit, and the suit is adjourned, the second suit is also adjourned because it is connected with the former. But such adjournment of the second suit not having been made at the instance of the plaintiff of that suit, cannot be treated as an adjournment which would call for the application of Rule 3 of Order 17, o. P. C. as against him. Thus the application by Abdul Moid in his suit for adjournment cannot be taken as an application by Dildar Husain for the adjournment of his own suit. On the 1st February, 1951, Dildar Husain was absent and his counsel stated that he had no instructions. He did not make any application for adjournment. The plaintiff cannot therefore be treated as present and the adjournment, if any, not having been made at Dildar Husains instance, Order 17, Rule 3, C. P. C. had no application to the case. Order 17, Rule 3, C. P. O. , applies only where any party to a suit to whom time has been granted fails to produce his evidence, etc. . etc. Obviously the rule applies when on a date adj