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Regular Second Appeal No. 361 of 1955, decided on 12th May 1958, from the decree of the Court of Hameed Ullah, Senior Civil Judge, with Enhanced Civil Appellate Powers, Gujrat, dated the 31st May 1955, affirming that of Chaudhri Bashir Ahmad, Civil Judge, II Class, Gujrat, dated the 19th January, 1955.

(a) Civil Procedure Code (V of 1908), S. 151 & O. IX, r. 2‑Court granting adjournment to plaintiff on payment of conditional costs to summon some of defendants‑Plaintiff failing to file process fee and refusing to pay costs‑Court dismissing suit under O. XVII, r. 3, Civil Procedure Code (V of 1908), though such order could have been made only under O. IX, r. 2 and S. 151 ‑Such order not a decree and not appealable.

Gauhati Bank Ltd. v. Baliram Dutta and others A I R 1950 Assam 169 rel.

Ma Chon v. Mating Myint A I R 1927 Rang. 148 ; Mst. Radhabai v. Mst. Purnibai A I R 1943 Nag. 149 and Krishnarao Bapurao Deshmukh v. Wamanrao Ganpatrao Deshmukh and others A 1 R 1950 Nag. 188 ref. .

(b) Civil Procedure Code (V of 1908), O. XVII, r. 3, O. IX, r. 2 and S. 151‑Court can proceed to decide suit forthwith oil basis of such material as is before it under O. XVII, r. 3, Civil Procedure Code‑Such decision will be on merits and fresh suit will be barred Fresh suit can be brought on same cause of action if suit is dismissed under O. IX, r. 2.

If a plaintiff or defendant has failed to produce his evidence and the Court, under O. XVII r. 3, Civil P. C., proceeds to decide the suit forthwith on the basis of such material as is before it, it may result in dismissal of the suit for want of evidence or an ex parte decree for want of any disproof of the plaintiff's evidence, but in either case it is a decision on merits and a fresh suit on the same cause of action will be barred under section 11, C. P. C. but if the suit is dismissed or the defence is struck off as a penalty, under section 151 or under O. 1X, r. 2, C. P. C. there is no provision in the Code which debars a plaintiff from filing a fresh suit on the same cause of action or the defendant from taking, up the same plea in defence of another suit.

Chander Koer v. Partap Singh 15 1 A 156 (P C) rel.

Iftikharul Haq Khan for Appellant.

Virasat Husain Naqvi for Respondents.

Dates of hearing : 3rd April and 12th May 1958.

Inayat Ullah appellant instituted a suit for possession of one‑third share in nineteen kanals and eighteen marlas of land situated in village Thutha Rai Bahadur, District Gujrat. The claim proceeded on the assertion of joint ownership with Mst. Khan Begum and others, defendants. On the 16th November 1954, when the suit came up for hearing, it was found that Boota and some other defendants had not been served. The trial Court thereupon adjourned the hearing to 16th December 1954 and directed the plaintiff to put in fresh process‑fee for effecting service on them. The plaintiff, however, failed to put in the requisite process‑fee by the last‑mentioned date whereupon the trial Court granted him another adjournment to do the needful, subject to payment of Rs. 16 as conditional costs. On the 19th January 1955, when the case again came up for hearing, it was discovered that the plaintiff consistent with his past conduct had failed to pay the process‑fee and over and above A that declined to pay the conditional costs to the opposite party., In consequence of it the trial Court dismissed the suit in default under Order XVII, rule 3, C. P. C. although such an order could have been made only under Order IX, rule 2 and section 151, C. P. C.

2. Aggrieved with the said order the plaintiff went up in appeal to the Senior Civil Judge, Gujrat, who dismissed it on the ground that an order dismissing the suit in default was excluded from the definition of "decree" in section 2 (2), C. P. C. From the appellate order the plaintiff has come up in second appeal to this Court.

3. In support of the appeal Mr. Iftikhar‑ul‑Haque Khan, learned counsel for the appellant, contended that an order dis missing the suit under Order XVII, rule 3, C. P. C. was a decree and in support of it relied upon Ma Chon v. Maung Myint (A I R 27 Rang. 148), Mst. Radhabai v. Mst. Purnibai (A I R 1943 Nag. 149) and Krishnarao Bapurao Deshmukh v. Wamanrao Ganpatrao Deshmukh and others (A I R 1950 Nag. 188). In Ma Chon v. Maung Myint the learned Judges held that dismissal of a suit for default under Order XVII, rule 3, C. P. C. was prima facie a decree as it amounted to formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to matters in controversy in the suit. They, however, failed to notice that under Order XVII, rule 3, C. P. C. no suit can be dismissed in default or decreed ex parte. In the event of default mentioned in the rule the Court may proceed to decide the suit forthwith meaning thereby on the basis of such material as may be before it without allowing the defaulting party another opportunity to produce his witnesses or performing such other act necessary for the progress of the suit. If a suit cannot be' dismissed in default under Order XVII, rule 3 of the Code, id cannot be contended with reasonableness that the definition of "decree" in section 3 (2), C. P. C. was intended to cover an to illegal order of dismissal purporting to have been passed under; that rule. I also perfectly beg to disagree with the observations that dismissal of a suit for failure to produce witnesses or to perform any act necessary for the further progress of the suit, the two eventualities mentioned in Order XVII, rule 3, C. P. C.; amounts to conclusive adjudication on the rights of the parties. It is a penalty imposed for default and unless it is provided in the Code that in such a case a plaintiff is debarred from suing on the same cause of action, he may file a fresh suit. I can understand that if a plaintiff or defendant has failed to produce his evidence and the Court, under Order XVII, rule 3, C. P. C., proceeds to decide the suit forthwith on the basis of such material as is before it, it may result in dismissal of the suit n for want of evidence or an ex parte decree for want of any disproof of the plaintiff's evidence, but in either case it is a decision on merits and a fresh suit on the same cause of action will be barred under section 11. C. P. C. but if the suit is dismissed or the defence is struck off as a penalty, under section 151 or under Order IX, rule 2, C. P. C. there is no provision in the Code which debars a plaintiff from filing a fresh suit on the same cause of action or the defendant from taking up the same plea in defence of another suit. Chander Koer v. Partap Singh (15 I A 156 (P C)). At page 310 of Code of Civil Procedure by Chitaley 5th (1950) Edition, Volume I, there is an observation by the learned commentator, that dismissal of a claim under Order XVII, rule 3 on account of the plaintiff's default in producing evidence to substantiate his claim has the same effect as dismissal founded upon evidence and the subject‑matter of such a claim will be res judicata. A large number of authorities, in which this view was expressed, are also mentioned in the foot‑note but this dictum will apply to those cases which, as observed earlier, have been decided on merits and not dismissed in default as a penalty for failure to perform some act necessary for the progress of the suit.

4. In Mst. Radhabai v. Mst. Purnibai, Justice Digby held that the definition of "decree" no doubt excludes the dismissal of a suit for default, but the words "dismissal for default" in clause (b) of section 2 (2), C. P. C. refer to those cases of dismissal for default with which the Code specifically deals. In his opinion an appeal, therefore, lay when the suit was dismissed because adjournment costs had not been paid. With great respect I cannot agree with the opinion because while confining his attention to the words "dismissal for default" in clause (b) of section 2 (2), C. P. C., the learned Judge omitted to notice the definition of the "decree" reproduced earlier. In Krishnarao Bapurao Deshnmkl; v. Wamanrao Ganpatrao Deshmukh and others, it was held that if some of the pro forma defendants were not served on account of a default on the part of the plaintiff, the trial Court could not dismiss the suit under Order XVII, rule 3, C.P.C. I am in respectful agreement with the view expressed E in this case except that such an order can be made only under Order IX, rule 2, C. P. C., but it does not apply to the facts of this appeal. In the present case, the plaintiff claimed possession of one‑third of the suit land in joint possession of all the defendants and each one of them was a necessary party to the suit. Mr. Iftikhar‑ul‑Haque Khan, with commendable cense of fairness brought to my notice a Division Bench authority of the Assam High. Court The Gauhati Bank Ltd. v. Baliram Dutta and others (A I R 1950 Assam 169) in which Krishnarao Bapurao Deshmukh v. Wamanrao Ganpatrao Deshmukh and others was disapproved.

5. On the view I have expressed above, I find that their order dismissing the plaintiff's suit in default was not appealablel as a decree. His appeal was, therefore, rightly dismissed by the lower Appellate Court. This appeal likewise fails but there will be no order as to costs because Syed Virasat Hussain, counsel for the respondents, who was present on the earlier hearing, was absent today.

K. M. A. Appeal dismissed.

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