JUDGMENT

Daniels, J C - This is an application for revision of an appellate order refusing to restore a case dismissed for default, suit No. 303 of 1923 in the Court of the Munsif of Kunda at Partabgarh. Evidence had been heard on 2nd April and 7th and 12th May 1924. On 12th May the plaintiff closed her case and the hearing of the defendant's evidence was begun. The case was then adjourned till next day for the remainder of the evidence. Next day the plaintiff and her pleader were both absent and the Munsif dismissed the suit under Order 9, Rule 8 read with Order 17, Rule 2, Civil Procedure Code. An application was subsequently made to him to restore the case on the ground that the plaintiff had become insane between 12th and 13th May and that her pleader had left the Court without ascertaining that the case was to be continued next day. The Munsif did not believe the allegation regarding the plaintiff but thought that her absence was probably a manoeuvre intended to put difficulties in the way of the defendant, who was a resident of Allahabad, who had been put to considerable expense in the matter of summoning witnesses, and whose witnesses might quite possibly fail to attend on the adjourned date. The learned Subordinate Judge also was not satisfied of the plaintiff's insanity and dismissed the appeal.

2. As this is a revision I must accept the findings of fact of the Courts below. The only substantial plea taken in the revision is thus stated in the ground of revision:

Because the Courts below failed to see that the case fell under Order 17, Rule 2 and acted illegally in dismissing the suit and not proceeding to decide it on the merits.

3. This plea is inaccurate in fact. The Courts below did act under Order 17, Rule 2 which provides that,

The Court may 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,

4. Rule 3 did not apply because time had not been granted to the plaintiff. The case was adjourned in the ordinary way because the evidence had not been completed when the Court rose for the day. The real contention of the applicant is that Order 9, Rule 8 ought not to be applied where the plaintiff's evidence was already on the record, and that the Court should have proceeded to hear the defendant's evidence and to dispose of the case on the materials before it, In support of this he relies on an unreported Bombay case decided under the Code of 1882 in which it was held that Section 108, corresponding to Order 9, Rule 8, did not apply if the plaintiff's evidence was already on the record. Order 9, Rule 8 might not of itself apply to an adjourned hearing, but it is made applicable to it by Order 17, Rule 2. Direct authority against the applicant's contention is contained in Phul Kuar v. Hashmatullah Khan [1915] 37 All. 460, which lays down that the words "or make such other order as it thinks fit" do not include a decision on the merits. Even if this is too narrow an interpretation it was certainly within the competence of the Court to dismiss the suit for default, and it cannot be said that in doing so the Court acted with material irregularity in the exercise of its jurisdiction. I therefore reject the application for revision, though under the circumstances I make no order as to costs.