Hon’ble Pankaj Mithal, J.—Heard Sri Dalvir Singh, learned counsel for the petitioners and Sri Aklank Kumar Jain, learned counsel for the respondents.

2. One Bahadur Singh, father of petitioner No. 3 and the maternal grand father of petitioner Nos. 1, 2, 4 & 5 executed a Will bequeathing his properties in favour of the petitioners.

3. Pratap Singh, the brother of Bahadur Singh who had died in the meantime, filed original suit No. 549 of 1994 (Pratap Singh v. Manoj Kumar and others) for the cancellation of the aforesaid Will. On the death of Pratap Singh, his sons succeeded him in the suit as the plaintiffs.

4. The aforesaid suit was dismissed on 28.2.1998 under Order 17, Rule 3 C.P.C. in the presence of the parties for want of evidence.

5. The plaintiff-respondents moved application purported to be under Order 9, Rule 9 C.P.C. for recalling the said order and for restoring the suit to its original number as if it has been dismissed for want of prosecution.

6. The application was rejected on 30.1.2010 on the ground it is not maintainable as the decision is on merits.

7. The respondents thereafter preferred Misc. Appeal purported to be under Order 43 Rule 1(d) C.P.C.

8. The appeal has been allowed by the impugned judgement and order dated 27.8.2015 and the suit has been directed to be decided on merits.

9. In challenging the above order, the submission is that the order passed dismissing the suit for want of evidence under Order 17 Rule 3 C.P.C. is a decision on merits. Therefore, the application under Order 9 Rule 9 C.P.C. was not maintainable. Since the application was not maintainable under Order 9 Rule 9 C.P.C. its rejection was not appealable under Order 43 Rule 1 (d) C.P.C. Thus, the appellate order is without jurisdiction.

10. Sri Jain, in response contends that the order dismissing the suit is not on merits. It is basically an order under Order 17 Rule 2 C.P.C. thus making it liable to be recalled under Order 9 Rule 9 C.P.C. and to appeal thereafter if necessary, under Order 43 Rule 1(d) C.P.C.

11. In view of the respective arguments as above the short controversy which springs up herein is whether the order dated 28.2.1998 dismissing the suit under Order 17 Rule 3 C.P.C. for want of evidence without going into the pleadings of the parties and the controversy involved would be a decision on merits so as to oust the applicability of Order 9 Rule 9 C.P.C. and in turn the remedy of appeal under Order 43 Rule 1(d) C.P.C.

12. In answering the above question it would be better to thrash out some material facts. The suit as stated was for the cancellation of a Will wherein dates were being fixed for recording the evidence of the plaintiff respondents. The plaintiff respondents have not produced their evidence. Therefore, it was adjourned and fixed for 28.2.1998 for recording their evidence.

13. On 28.2.1998 counsel for both the parties were present but neither any witness was produced nor any application for adjournment was moved by the plaintiff respondents. The Court therefore, proceeded under Order 17 Rule 3 C.P.C. to decide the suit forthwith and dismissed the suit in the absence of evidence of the plaintiff-respondents. The order dated 28.2.1998 which is very material and relevant is as under:

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14. A bare perusal of the aforesaid order reveals that on the said adjourned date counsel for both the parties were present but as no evidence was produced by the plaintiff-respondents the Court had dismissed the suit.

15. Since the suit was dismissed in purpo