JUDGMENT

1. This is an appeal from an order refusing to set aside an alleged ex parte decree passed against the defendant. The case came up for hearing on 22nd January 1934 when it was adjourned till 19th February 1934. The record kept by the Court below is most confusing. According to the note made by the Judge in English the case was adjourned at the instance of both the plaintiff and the defendant. According to the entry made in the order-sheet the case was adjourned at the request of the plaintiff, while according to paper No. 420, the case was adjourned on a statement having been made by the defendant's counsel that there was a prospect of a compromise, and this was countersigned by the plaintiff's counsel also.

2. It may therefore be taken that the case was adjourned with the consent of both the parties. On 19th February 1934, some time early in the day, a list of witnesses, signed by the defendant's counsel, was filed as required by the proviso to Order 16, Rule 1, under which no party is entitled to call any witness not named in a list, which must be filed in Court before the hearing of evidence on his behalf has commenced, without an order of the Judge. The list of witnesses was filed before even the evidence for the plaintiff had commenced and indeed before even the case was called on for hearing. At 12 a. m. the case was called on for hearing. The plaintiff and his witnesses and his pleader were present, but neither the defendant nor his counsel was present. The Court decided to take up the case on its merits and after recording the evidence for the plaintiff decreed the suit under Order 17, Rule 3. Instead of appealing from the decree passed in the case the defendant applied on that very day to have the decree set aside on the ground that it was ex parte, alleging that he suddenly got a colic pain and had to be taken to a doctor from the Court compound, and produced a medical certificate in proof of that fact. The learned Judge has not gone into the merits of the application and has not decided whether there was or was not sufficient cause for the non-appearance of the defendant and his counsel, but has merely rejected the application on the sole ground that he had no jurisdiction to entertain it. The view expressed by him is that, as the case had already been adjourned at the request of the defendant, Order 9, Civil P.C., was not applicable and he had proceeded under Order 17, Rule 3.

3. Now ordinarily if on a date fixed for hearing the defendant and his counsel do not appear and the plaintiff is present with his witnesses, the Court, if it does not adjourn the case, may proceed to hear it on the merits. If the suit is dismissed, the defendant does not suffer; but the suit cannot be decreed merely because the defendant or his pleader is absent, but must be decided on the evidence produced by the plaintiff. In such a case, although the decree is necessarily one on the merits of the case, the proceedings against the defendant are ex parte and the decree passed against him would also be ex parte within the meaning of Order 9, Rule 13, Civil P.C. If both the defendant and his pleader are absent at the adjourned hearing of the suit then also the proceeding is necessarily ex parte, and it is difficult to hold that Order 9, Rule 13 would be inapplicable. The question really is whether in the circumstances of this case it can be said that neither the defendant nor his counsel was present.

4. It has already been pointed out that the filing of the list of witnesses under the proviso to Order 16, Rule 1 is a necessary preliminary condition for the exercise of the right to call witnesses. The proviso itself lays down that the list must be filed "before the hearing of evidence on his behalf has commenced." This list is not to be in the form of an application and there need of course be no prayer contained in it. Accordingly, no court-fee is required for such a list. The object of the proviso is to place on the record a. list of th