( 1 ) THIS is an appeal from an order refusing to set aside an order dismissing a suit for want of prosecution. 1-12-1949 was fixed as the date for final hearing. The plaintiff took adjournment on that date on the ground that he was indisposed. 17-2-1950 was the next date fixed for final hearing. On that date also the plaintiff made an application for adjournment on the ground that he was Indisposed. This application was rejected by the court and thereafter the counsel for the plaintiff stated that he had no further instructions to proceed with the case. The Court passed the following order:

"the suit is dismissed for want of prosecution with costs to the defendants. "

( 2 ) THE plaintiff then made an application within time for restoration of the suit to its original number. The court rejected this application on the ground that the order was appealable as it was an order on merits under Order 17 Rule 3 Civil P. C.

( 3 ) LEARNED counsel for the appellant had urged that the order in question was not an order on merits under Order 17, Rule 3 C. P. C. , and that it was an order of dismissal of the suit for default under Order 9 Rule 8, C. P. C. He has further urged that this order could not be treated as an order on merits for the reason that the court gave no judgment as required by Order 20 Rules 4 (2) and (5 ). In support of the contention that the order of dismissal for want of prosecution is an order of dismissal for default, he has relied upon the decision of Bench of this Court in Panna Lal v. Basdeo, AIR 1933 All 118 (A) and also on certain observations made in the ruling: Sri krishen v. Radha Kishen, 1950 All LJ 799: (AIR 1952 All 652) (B ). On behalf of the respondents, on the other hand, it has been urged that the order in question must be treated as an order under Order 17, Rule 3, C. P. C. and in support of his argument learned counsel has relied upon several cases: Baldeo Singh v. Chhaju Singh, 1931 All LJ 646 : (AIR 1931 All 703 (2)) (C), Manmohan Das v. Krishna Kant Malvia, 1933 All LJ 4: (AIR 1933 All 41) (D), Ram Dulari v. Bhola, 1935 All LJ 724 : (AIR 1935 All 398) (E), Jafri Begam v. Asghar Ali Khan, 1936 All lj 635: (AIR 1936 All 659) (F), Sheo. Pujan v. Bishnath, 1939 All LJ 627: (AIR 1939 All 642) (G), Narain Das v. Madan Mohan, 1939 All LJ 371 : (AIR 1939 All 524) (H), Jhandoo Mal and sons v. Khalsa Singh, 1940 All LJ 269 : (AIR 1940 All 305) (I) Bhutan Rain v. Madan Lal, AIR 1947 All 40 (J ).

( 4 ) ON a consideration of the case law and the relevant provisions of the Code of Civil Procedure it appears to us that the contention of the learned counsel for the respondent is correct. In all cases in which in the absence of one of the parties a final order has been passed against him in a case on an adjourned date, there are always two questions to be considered: (1) What was the Court empowered to do--to proceed under Order 9 or to decide on merits? (2) What has the Court actually done--has it proceeded under Order 9 or decided on merits?

( 5 ) FIRST as to the power of the Court. Order 17, Civil P. C. refers to adjournments. Rule 1 authorises the court at any stage of the suit to adjourn the case from time to time if sufficient cause is shown. Rule 2 as amended by this court and as it stands at present is as follows:

"where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that be-half by Order IX or make such other order as it thinks fit. Where the evidence, or a substantial portion of the evidence, of any party has already been recorded, and such party fails to appear on such day, the Court may in its discretion proceed with the case as if such party were present, and may dispose of it on the merits. Explanation:--No party shall be deemed to have failed to appear if he is either present or is represented in court by an agent or pleader, though engaged for the purpose of