Rankin, C.J.In this case there was a suit brought by the plaintiff to set aside a compromise decree which had been entered into on his behalf by his mother when he was a minor. The decree was in September 1926, the plaintiff attained majority in 1927 and the events that we are concerned with happened in January and February 1930. The suit was in the Court of the Additional Subordinate Judge of Dacca. On 31st January 1930 the plaintiff wanted time because of communal disturbance in the town and he was given time till next day. Then he filed a petition saying that his pleader had not come to Court and he was given an adjournment till 5th February. On the 5th he filed another petition asking for examination of a witness on commission. The Judge was not willing to give him an adjournment on that ground though he was prepared, if necessary, to consider whether that should be done during the trial. Consequently on 5th February the suit was taken up. The plaintiff was examined but his examination was not concluded and as it was late in the day the suit was adjourned to the next day. There seems to be no doubt that the plaintiff had not been attending diligently to this matter and when the suit was called on the 5th he made up his mind to do what he could and it seems and we accept it as a fact that to get his witnesses he went off that very day to the district of Mymensingh and came back with some witnesses on the morning of the 6th; but he must have been something like an hour late in attending the Court because the learned Subordinate Judge waited 40 minutes and then took some evidence and then dismissed the suit on the merits.

2. The plaintiff applied to have the suit restored and the first question is whether he was entitled to do that or whether his only remedy was to appeal from the decree. I confess there is a good deal to be said in favour of the view that where a suit has been decided upon some evidence given by the plaintiff and the evidence given by the defendant the right of appeal depends upon what the Court did and not upon what the Court should have done and on those lines there is a good deal to be said in favour of the view that the proper remedy is by way of appeal. It seems however that, in a number of cases a different view has been taken not always in cases exactly on all fours. Cases where a different view has in substance been taken are the cases of Enatulla Basunia Vs. Jiban Mohan Roy, , Ram Charan Lal Vs. Raghubir Singh and Others, and Shashi Bhusan Kumar v. Dwarka Prosad Marwari AIR 1922 Pat 2 , [LQ/PatHC/1921/119] and in other cases. It seems quite clear that the learned Judge was not entitled to act under Rule 3, Order 17, Civil P.C., but he, it seems, should have acted under Rule 2 of that order and as he dismissed the plaintiffs suit I am disposed to treat it on the line of the authority to which I have referred, as though the decree of dismissal had been a decree made ex parte. The plaintiffs evidence had not been completed and the suit was dismissed in his absence. So although the learned Judge has wrongly proceeded to call the defendants evidence, I think we may treat it as a case coming within Order 9.

3. That being so, the question is whether there is sufficient cause for the plaintiff being late. Now, in a sense there is not sufficient cause because the plaintiff ought to have done his work of collecting his witnesses earlier and he ought to have got before the learned Judge sooner than he did. But it is evident that the man was doing his best and acting very strenuously in collecting his witnesses and bringing them in Court on the morning of the 6th and I do not think that we are debarred by terms of Order 9, Rule 13, Civil P.C., from giving him his remedy when in a wrong-headed and muddle-headed way he was doing his best to have his witnesses before the Court. That being so, I am of opinion that we ought to allow the appeal, set aside the decree dismissing the plaintiffs suit and direct that the plaintiffs suit be restored. I think however that the appellant ought to pay the respondents costs of this appeal but we do not make it a condition precedent. We assess the hearing-fee at three gold mohurs. There will be no order for costs in the Court below on the application.

C.C. Ghose, J.

4. I agree.