JUDGMENT

Bhargava, J. - Rafiq Ahmad and Iqbal Ahmad, the plaintiffs-appellants, instituted a suit against the defendants, Mohammad Shafi and others in the Court of the Civil Judge of Aligarh. That suit came up before the Court for hearing on 18th May 1945. The plaintiffs had summoned more than 20 witnesses for that date; hut only two could be examined on that date. The case was then adjourned for further hearing to the next day, viz, 19th May 1945. On the last mentioned day, one more witness was examined; and, for want of time, the case was adjourned for further hearing to 21st May 1945, on which date the plaintiffs applied for time to move the District Judge for transfer of the suit to some other Court. The application was granted and plaintiffs were ordered to pay Rs. 50 as costs of adjournment. The costs were to be paid by 26th May 1945, but they were not paid. An application for transfer of the suit was filed in the Court of the District Judge; but it was rejected. Thereafter, 26th October 1945, was fixed for final disposal of the suit. The plaintiffs applied for change of date; but their application was rejected. On 25th October 1945, the plaintiffs took out summonses for 15 witnesses, but they (plaintiffs) were absent when the suit was taken up for hearing on 26th October 1945. The hearing was adjourned to 29th October 1945. The Court proceeded to decide the suit on merits, under Rule 3 of Order 17, Civil P.C., and dismissed it the same day. The plaintiffs made an application under Order 9, Rule 9, Civil P.C., to have the dismissal set aside; but the Court dismissed the application as not maintainable, on the ground that the suit was decided under Order 17, Rule 3, Civil P.C. This appeal is directed against the order dismissing the application under Order 9, Rule 9, Civil P.C.

2. On behalf of the appellants, it has been contended that the provisions of Rule 3 of Order 17 of the Code in terms did not apply and the Court should be deemed to have acted under Rule 2 of the same order, read with Order 9 of the Code. Rule 3 of Order 17 is 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 other 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.

The plaintiffs had not applied for, nor were they granted, time to do anything. On 19th May 1945, the Court adjourned the suit for want of time and on 21st May the plaintiffs were granted time to make an application for transfer and they did so. When the case was adjourned on 21st May the plaintiffs were, no doubt, ordered to pay lis. 50 as costs; but the order allowing adjournment was not made conditional on payment of costs. 26th October 1945 was the date fixed for final disposal of the suit. Obviously, therefore, Rule 3 of Order 17 had no application and the Court could not proceed to decide the suit on merits under the said Rule.

3. Rule 2 of Order 17 reads 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 O, 9 or make such other order as it thinks fit."

And to this Rule this Court has added

Where on any such day the evidence, or a substantial portion of the evidence, of any party has been recorded and such party fails to appear, 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:....

As 26th October 1945, was not the first hearing, it must be deemed to be an adjourned hearing contemplated by Rule 2 of C.17 and the plaintiffs having failed to appear on that day, the Court could proceed "to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit;" and, in view of the