(1.) This application in revision under Section 115 of the Civil P. C. has been referred to Division Bench for hearing. The point involved is whether an ex parte decree, passed in a suit, in which special witnesses have been examined under Order XVIII, Rule 16, Civil P. C., can be set aside under the provisions of Order IX, Rule 13, Civil P. C. The suit was filed in the court of Subordinate Judge, first court, Arrah in 1966 and later was transferred to the court of Additional Subordinate Judge. 3rd Court. In 1969, three witnesses were examined on behalf of the defendants, who are opposite party in this case, as special witnesses with Court's permission under Order XVIII Rule 16, C. P. C. In 1972, the case was ready for hearing, but as the defendants did not appear, an order was passed on the 10th of July, 1972, that the suit would be taken up on the next day for ex parte trial. On 11-7-1972, the ex parte hearing was taken up and was finished and on 13th July, 1972, the suit was decreed. On 20th July, 1972, the defendants filed an application under Order IX, Rule 13 for setting aside the ex parte decree and on the 7th March, 1974, the prayer was granted by the impugned order. The plaintiffs have filed the present revision application alleging that the petition under Order IX, Rule 1'3, C. P. C. was not maintainable.
(2.) On behalf of the petitioners, it has been contended that as the defendants had examined some witnesses in the year 1969, the hearing of the case must be held to have started then, and that being the position, the decree passed in the suit cannot be described to be an ex parte decree so as to attract the provisions of Order IX, It is accepted that on the 10th and 11th July, 1972, orders had to be passed under Order XVII, Rule 2, but it is said that it was open to the Court to have decided the suit on merits under that provision instead of proceeding ex parte and in the present case it should be assumed that the court below did so, and consequently it could not, later entertain an application under Order IX, Rule 13,
(3.) The provisions of Order IX, Order XVII and Order XVIII appear to be relevant to the point under consideration. The consequence of non-appearance of a party is dealt with in Order IX, Order XVII contains the provisions relating to adjournments while Order XVIII deals with the hearing of the suit and examination of witnesses. If the defendant does not appear when the suit is called for hearing, the Court is authorised under Order IX, E. 6 to proceed ex parte. Rule 2 of Order XVII provides that if the parties or any of them fail to appear on the date of hearing of the suit, the court may proceed in accordance with the procedure as laid down in Order IX "or make such other order as it thinks fit". The latter portion of Rule 2 has been construed by the learned counsel for the petitioner to empower the Court to decide on merits even in absence of the defendant, if it so chooses to do.