JUDGMENT
1. In this case the appellant is aggrieved by an order of the Subordinate Judge of Muzaffarpur, refusing an application to re-hear a suit decided in the following circumstances: This was a partition suit, Defendant No. 10 had put in a plea that there had been a previous partition. Steps were being taken for a compromise between the plaintiff and the defendant, the defendant admitting that partition should proceed but limiting the plaintiff’s rights in that partition to less than the whole of the lands claimed in the plaint. Accordingly on the 13th February 1917 plaintiff and defendant No. 10 put in an application for time jointly. This application for time was rejected. The Subordinate Judge then put the plaintiff into the witness-box. The defendant’s Pleader declined to cross-examine, saying that he had no instructions save to ask for time. The Subordinate Judge then recorded on 13th February 1917: ‘Case opened. Plaintiff examined witness Jatadhari Lal. Arguments heard. Preliminary decree passed on contest.’ (N.B. The word uncontested in the paper book is a misprint). ‘Suit adjourned to 1st March 1917 for further orders.’
2. The defendant No. 10 then applied for a re-hearing. His application was rejected, on the ground that “the preliminary decree was passed on contest as against the petitioner, as appears from the judgment and record. Therefore, Rule 13, Order IX, does not apply and the applicant has failed on this ground.” The defendant No. 10 is now appellant before us.
3. It is clear that the order of the learned Subordinate Judge cannot be supported on the ground given. The mere fact that he said that the decree was made on contest would not make it a decree on contest; we have to lock into the circumstances and decide for ourselves whether it was on contest or not, and the decision in Satish Chandra Mukerjee v. Ahara Prasad Mukerjee 34 C. 403 : 11 C.W.N. 329 : 5 C.L.J. 247 : 2 M.L.T. 123 (F.B.) is clear authority for the proposition that where a Pleader has no instructions but to ask for time, his sitting in the Court room is not an appearance. It is obvious that the decree against the appellant was made ex parte. It is argued further on behalf of the respondent that Order IX, Rule 13, does not apply to cases decided under Order XVII, Rule 3. With that proposition we have no reason to dissent. But the question again is one of fact, whether the case was decided under Order XVII, Rule 3, or not, and again it does not make a decision a decision under Order XVII, Rule 3, that the Court should have erroneously imagined that it was acting under that section. The decision of the suit forthwith in spite of the default contemplated in Order XVII, Rule 3, is limited to cases in which there is already prior to the default sufficient material for a decision. If there is no material on the record at all, the case would be obviously dismissed against the plaintiff. If it is necessary to bring on to the record evidence sufficient to give the plaintiff a decree it could not be said that the decision was made forthwith. In the case before us what happened was not a decision made forthwith but a hearing of the plaintiff’s witness and a decision in the absence of the defendant. This was a proceeding under Order XVII, Rule 2, not under Order XVII, Rule 3, and Order IX, Rule 13, applies to it.
4. On the merits we are of opinion that the application should succeed. Where there is an agreement in good faith between the plaintiff and the defendant to apply for adjournment for the purposes of a compromise, that in itself is a sufficient excuse for the defendant for not anticipating an attack by the plaintiff and, therefore, not being prepared to meet it. As far as we can ascertain from the circumstances of the present case the joint application was made in good faith and should have been granted.
5. The appeal is, therefore, decreed with costs. Hearing fee in accordance with the scale laid down.
6. The decree of the 13th February 1917 is set aside. The suit will be re-heard on its merits.
