(Babu) Madho Dass and Another Vs His Highness The Maharajah of Benares

Daniels, J.@mdashThis is a revision against an order refusing to restore a case which had been decided on the merits under Order 17, Rule 3. The point taken in revision is that the Court should have decided the case ex parte under Order 17, Rule 2. The defendant had taken time for framing of issues, and on the date finally fixed he did not appear. The plaintiff was present. The Court framed issues took evidanca on behalf of the plaintiff, and decided the case on that evidence. The learned Judge of the Court below has held that as the Trial Court in fact decided the case on the merits under Order 17, Rule 3, his remedy was by way of appeal. That decision is in accordance with the decision of a Bench of this Court in the case of Nasir Khan Vs. Itwari and Others, . There the rule was laid down that the right of appeal does not depend on what a Court ought to have done, bat on what it actually did. If the Court actually decided a case on the merits, then the remedy of the aggrieved person is by appeal. If the Trial Court acted wrongly in deciding the casa on the merits, the Appellate Court had full power to put things right.

2. I, therefore, hold that the applicant''s remedy was by way of appeal from the decision, and that the present application fails. It is accordingly dismissed with costs.