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Revision Petition No. 84 of 1945, decided on 11^th March, 1948, from the order of Di3trict Judge, Hyderabad.

O. IX, r. 3 and O. 17, r. 2‑Suit dismissed when none of the parties was present and order does not name the provision of law under which the suit is dismissed, it should be deemed that order was passed under O. 17, r. 2 read with O. 9, r. 3‑No appeal, therefore, lies against such order.

The present suit was certainly not disposed of on the merits but for default in appearance. The Code of Civil Procedure is and is intended to be exhaustive of the circumstances in which a suit may be dismissed for default. In this connection we would refer to the observations of the Privy Council in Gokul Mandar v. Pudananand Sing, 29 Cal. 707 at p. 715 and referred to in Usto v. Ghulam Qadir, 8 S L. R. 241 that the essence of a Code is to be exhaustive on the matters in respect of which it declares the law.

We consider, therefore, that O. XVII, r. 2 read with O. IX, r. 3 is appropriate and that there is no other provision of O. IX, which fits the case.

As pointed out above, no appeal lies from an order under O. IX, r. 3, or O. IX, r. 4. The learned District judge, therefore, acted without jurisdiction in entertaining this appeal.

I. L. R. 1945 Karachi 1; A. I R. Sind 98; I. L. R. 1942 Karachi 547; A. I. R. 1943 Sind 94; A. I. R. 1943 Bom. 321; and 29 Cal. 707 (P. C.) relied on.

Mangharmal B., for applicant.

Fateh Chand Acsudomal, for respondent.

---This is a revision application against an order by the District Judge of Hyderabad restoring a suit. 1 he suit had been fixed for hearing on 7th May 1944, upon which date both the plaintiff and the defendant were absent and it was dismissed by the‑Subordinate judge of Mirpur Khas who made the following order. The plaintiff absent. His Pleader remained absent. Defendant is ex parte. The suit is dismissed.

It would appear that the defendant had been absent on two earlier hearings, to wit, on 28th April 1944 and 5th May 1944. It is not clear from the material before us, on which of these dates the ex parte order had been passed but presumably on the earlier date. On 5th May 1944 the case had been adjourned to 17th May 1944 at the request of the plaintiff to enable him to produce ex parte proof.

An application was made by the plaintiff to restore the suit on the ground that he was unaware of the date of hearing. This application was not specified as falling under any particular provision of Order IX, Civil Procedure Code but the learned Subordinate judge dealt with it as one under Order IX, Civil Procedure Code and dismissed it on the merits, holding that the plaintiff had failed to make out sufficient cause for his non-appearance.

An appeal was then preferred against this order to, the District Judge of Hyderabad, who was of the view, on the merits, that the plaintiff had made out sufficient cause, and he set aside the order of the Subordinate judge and directed that the suit be restored to the file upon certain conditions.

Before the learned District judge a preliminary objection had been raised on behalf of the defendant that no appeal lay because since on the date of hearing both the plaintiff and the defendant were absent, the order of dismissal of the suit must be deemed to have been made under Order IX, Rule 3, Civil Procedure Code and the application for restoration of the suit to have been made and dismissed under Order IX, Rule 4, Civil Procedure Code. An order under Order IX, Rule a, Civil Procedure Cede is not appealable, and the appeal to the District judge, therefore, did not lie.

The learned District judge in overruling this objection said

"In the present case the plaintiff was present on a previous hearing of the suit. On 28th April 1944, 5th May 1944 and Nth May 1944 the defendant was absent and an order that the suit be heard ex parte against him was passed. In the circumstances the suit must be deemed to be disposed of under Order 17, Rule 2, Civil Procedure Code, and it is pointed out in Mulla's Civil Procedure Code, where a suit is disposed of under Rule 2, it is open to the party aggrieved by the order to proceed under Order IX, Rule 9, I, therefore, hold that an appeal lies."

The learned judge was correct in our view in saying that Order XVII, Rale 2, Civil Procedure Code, was applicable to the present case. The provisions of Order IX by themselves do not apply to adjourned hearings, but the effect of Order XVII, Rule 2 is to assimilate the procedure contem plated in Order IX to adjourned hearings.

We are unable to agree, however, that Order IX, Rule 9 which relates to dismissal of suit under Order IX, Rule 8 has any application to the present case, for Rule 8 refers to a case where the defendant appears and the plaintiff does not appear when the suit is called on for hearing. The defendant did not appear in this case when the suit was called on for hearing.

The passage from Mulla's Civil Procedure Code quoted by the learned judge appears in the commentary to Order XVI1, Rule 3, Civil Procedure Code in the paragraph headed "remedy," The learned judge failed, however, to set out the paragraph in its entirety. The whole passage reads

"Remedy.‑Where a suit is disposed of under the first part of Rule 2 above, it is open to the party aggrieved by the order to proceed under 3r Rule 9 or order IX. Rule 13, as the case may be ; See notes to Rule 2 above. One of the modes directed by Order IX. But where a case is decided under the present rule the decision amounts to a decree, and the remedy of the party aggrieved is by way of appeal or by way of review. As to what points may be taken in appeal and what in review, see the under‑mentioned case."

The Commentator was here clearly dealing with the difference between the remedies open to parties aggrieved by orders under Order XVII, Rule 2 and Order XVII, Rule 3, respectively. The paragraph in question was not intended as a commentary on Order XVII, Rule 2, as is clear both from the context and the mention of the previous note under Rule 2 headed "One of the modes directed by Order IX."

A reference to the note in question makes it clear that in the Commentator's opinion, which is obviously correct, there are three separate modes in which a Court may under Order XVII, Rule 2 read with Order IX, dispose of a suit in default of appearance at an adjourned hearing.

The first case contemplated is where the defendant appears and plaintiff does not appear, the Court shall dismiss the suit (subject to defendant's admissions as to the claim) under Order XVII, Rule 2 and Order IX, Rule 8, and the plaintiff is at liberty to apply under Order XVII, Rule 2 and Order IX, Rule 9 for the dismissal to be set aside.

The second case is where the plaintiff appears and the defendant does not, the Court may proceed ex carte under Order XVI 1, Rule 2 and Order IX, Rule 6. If a decree is passed, the defendant may apply under Order XVII, Rule 2 and Order 1X, Rule 13, to have it set aside if the Court has adjourned the hearing, ex carte, the defendant may appear at or before the adjourned hearing, and on assigning good cause for his previous non‑appearance he will under Order IX, Rule 7, be permitted to be heard in answer to the suit,

The third case is where, to reproduce the words of Sir Dinshaw Mulla s commentary

If both parties fail to appear at the hearing the Court may make an order dismissing the suit under this rule (Order XVII, Rule 21 and Order XI, Rule 2, and the plaintiff may then, if so advised, either bring a fresh suit, or apply for an order to set the dismissal aside under this rule (Order XVII, Rule 2) and Order IX, Rule 4.

The question which has been discussed at some length before us is as to whether Order XVII, Rule 2 read with Order IX, Rule 3 excludes a case in which the defendant had at a previous hearing failed to appear and the Court had adjourned the hearing of the quit ex parte.

I had expressed the view in Hariram Rewachand v. Pribhdas Mulchand and others, I. L. R. (1945) Kar 1 that where a defendant duly served with a summons has made default in appearance and the Court has decided to proceed ex parte against him, he is not entitled to appear and be heard in answer to the suit at any subsequent hearing without first assigning good cause for his previous non‑appearance tinder Order X1, Rule V1I, I under stand that Constantine J. in a case on the original side followed this decision and an appeal against his order was dismissed summarily by a Bench of this Court in its High Court jurisdiction.

The procedure of this Court in such cases must therefore be taken to be settled until the decision in Hariram v. Pribhdas, I. L. R. (1945) Kar. 1 is overruled by a Full Bench.

The question, therefore, on which there has been some discussion before us is whether in view of the decision in Hariram's case (I. L. R. (1945) Kar. 1 the defendant was in a position to make appearance at all on 17th May 1944, within the meaning of Order IX, Rule 3, in view of the previous ex parte order against him.

Both the learned advocates accepted as common ground that if Order IX, Rule 3, was inapplicable to such a case, no other part of Rule IX would apply. Order IX, Rule 8 was clearly inapplicable as the defendant did not appear.

The question then arose as to what particular rule the suit must be deemed to have been disposed of if Order IX were inapplicable. It was conceded that the words "or make such other order as it thinks fit" in the last Part of Order XVII, Rule 2, would not cover an order dismissing a suit.

Order XVII, Rule 3, Civil Procedure Code, it was conceded, was inapplicable in view of the decision of this Court to Tekchand v. Kalusing, I. L. R, (1942) Kar. 547 and of the Bombay High Court in Basalingappa Kushappa v. Shidramappi Irappa Sheranngi, A. I. R. (30) 1943, Bom. 321 that Order XVII, Rule 3 contemplates a decision on the merits.

After considerable discussion on various aspects of the matter both the learned advocates "finally agreed that Order IX, Rule 3, was appropriate to the facts and that the suit must be deemed to have been dismissed under Order XVII, Rule 2 read with Order IX, Rule 3.

With this view we are in agreement Neither party did in fact appear on 17th May 1944, when the suit was called on for hearing and the conditions of Order IX, Rule 3 were literally fulfilled. Whatever the cause of non‑appearance seems to us immaterial whether for instance the defendant had by reason of previous non-appearance put it out of the power to be heard in answer to the suit on 17th May, makes in our view no difference.

The present suit was certainly not disposed of on the merits but for default to appearance. The Civil Procedure Code is and is intended to be exhaustive of the circumstances in which a suit may be dismissed for default. In this connection we would refer to the observations of the Privy Council to Gokul Mandar v. Pudmanand Sing, 29 Cal 707 at p. 715 and referred to in Usto v. Ghulam Kadir, 8 S. L. R. 241 that the essence of a Code is to be exhaustive on the matters in respect of which it declares the law.

We consider therefore that Order XVII, Rule 2 read with Order IX, Rule 3 is appropriate and that there is no other provision of Order IX, which fits the case.

As pointed out above, no appeal lies from an order under Order IX, Rule 3 or Order IX, Rule 4. The learned District judge therefore acted without jurisdiction in entertaining this appeal and setting aside the order of dismissal.

We accordingly reverse this order of the District judge and restore the order of the Subordinate judge dismissing the suit with costs We allow the costs of this application.

K.M.A. Revision allowed.

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