The court's power to dismiss a suit for default under Order 17 Rule 2, Civil Procedure Code and the applicability of Order 9 Rule 13, Civil Procedure Code for restoration of a suit dismissed under Order 17 Rule 2.

( 1 ) THESE two appeals are filed by one Srimati Jaggo who was defendant in two suits, and whose application for restoration in the said suits was rejected by the trial Court. It appears that one kanhaiya Lal had filed two suits against Srimati Jaggo who was the sole defendant in both the suits. In these suits, 8-7-1950, was fixed for recording evidence of the parties. On that date, the statement of one witness for the plaintiff was recorded. The Court then fixed 10-7-1950, as the next date for the hearing of the cases. On 10-7-1950, however, the plaintiff gave an application for filing a document. The Court allowed this application on payment of Rs. 25/- as costs by the plaintiff, and adjourned the cases fixing 28 and 29-9-1950, for further proceedings in the cases. On 28-9-1950, however, the defendant applied for adjournment. This application of adjournment was rejected by the Court. Her counsel, who was engaged for the sole purpose of giving the adjournment application also withdrew from the case, and thereafter the cases proceeded in the absence of the defendant or her counsel. The Court recorded the evidence of plaintiffs witnesses on 28 and 29-9-1950. On 29-9-1950, the plaintiff closed his evidence in the said cases. After that a number of dates were fixed for arguments, but for one reason or the other, the cases could not be taken up, and had to be postponed. The Court heard arguments on 12-11-1950, and delivered its judgment on merits in the said cases on 13-11-1950. Subsequently, the defendant presented an application under Order 9 Rule 13, Civil P. C. , for restoration in each of the two cases. These applications were rejected by the court on the ground that the judgment in the two cases having been given on the merits the proper remedy of the applicant was by way of appeal and the application for restoration were not maintainable in law. Aggrieved with the said orders in the two cases, the defendant has filed these two appeals in the High Court.

( 2 ) HAVING heard the learned counsel for the appellant, were of opinion that these appeals should be allowed. In the present case, the Court could dispose of the case under Order 17 and the two rules that are relevant to the present case are Rules 2 and 3.

( 3 ) LEARNED counsel for the respondent argued that in the present case the Court was entitled to decide the suit on merits under Order 17, Rule 3, Civil P. C. We are unable to accept this contention. The important point to remember in this connection is that 28-9-1950, was not a date which was fixed at the instance of the defendant. It is admitted in the present case that this date was fixed at the instance of the plaintiff. Order 17, Rule 3 lays down as follows :

"where any party to a suit to whom time, has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith".

In the present case, it cannot be said that time was granted to the defendant to do any act on 28-9-1950. Moreover, even if time had been granted to the defendant to do any such act, if the court wanted to take action under this provision of law, it should have proceeded to decide the suits forthwith. The Court, in the present case, did not proceed to decide the suits forthwith. Under the above circumstances, there can be no manner of doubt that in the present case the court could not have acted under Order 17, Rule 3, C. P. C.

( 4 ) THE only provision of law, therefore, under which the Court could have acted is Order 17, rule 2, Civil P. C. Order 17, Rule 2, runs 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 behalf by Order IX or make such other order as it thinks fit".

This Court has