JUDGMENT Ghulam Hasan, C.J. - This is a Plaintiff's revision u/s 115 CPC from an appellate order of the Additional Civil Judge, setting aside the order of an Assistant Collector, first class refusing to set aside an ex parte decree. 2. The suit was instituted on 21st January 1941, for arrears of weighing dues in respect of 1347F for a sum of Rs. 249-4-3. 3. The suit was dismissed for default of the Plaintiff on 8th April, on this date the written statement was filed by the Defendant. The suit was restored on the 6th June, and was decreed ex-parte on the 3rd July. On the 29th August, the ex prate decree was set aside and issues were framed on this date. The case was fixed for evidence on the 20th September, when four witnesses on behalf of the Plaintiff were examined and the case was closed. The Defendants did not want to examine any evidence excepting that of the Plaintiff himself. The Plaintiff being not present, the case was fixed for his examination on the 11th October. She Defendants were directed to summon the Plaintiff and the general agent of the Plaintiff was directed to inform the Plaintiff that he must appear on the 11th October to give evidence. On the 11th October, the Plaintiff was not present. His general agent stated that the Plaintiff had moved for transfer of the case and therefore the case should be adjourned. The case was adjourned to 24th October. The Defendants were. again directed to summon the Plaintiff for this date and the general agent was also directed to bring him to Court for his evidence. 24th October was declared a holiday and the case was taken up on 25th October. The transfer application file had not been received from the Deputy Commissioner and the case was therefore adjourned to 6th November to be taken up in camp at village Chaura where the Assistant Collector was going on tour. On this date the general agent of the Plaintiff was present but the Plaintiff was again absent. The Defendants were also absent the case was ordered to be taken up on the 7th November at Saudi camp. The Defendants were present on this date. The parties counsel were also present but the Plaintiff was again absent. On this date the general agent of the Plaintiff was present but the Plaintiff was again absent. The Defendants were also absent the case was ordered to be taken up on the 7th November at Saudi camp. The Defendants were present on this date. The parties counsel were also present but the Plaintiff was again absent. The general agent of the Plaintiff made an application asking for adjournment on the ground that the Plaintiff was too ill to appear. The case was, therefore adjourned to 17th November with a direction that it will be taken up at camp Kanjaura. On this date the Plaintiff was; for the first time present in person but the Defendants and their counsel were absent. The suit was decreed ex parte. 4. An application to set aside this ex prate decree was made on the 16th December under Order 9, Rule 13 Code of Civil Procedure. but was rejected by the Assistant Collector on the 30th January, 1942. The lower appellate Court, however, allowed the appeal and set aside the ex parte decree. 5. Two questions have been argued before me on behalf of the applicant. The first contention is that the case fell under Order 17, Rule 2(2) added by the Chief Court or under Rule 3 substituted by this Court and the lower appellate Court had no jurisdiction to proceed under Order 17, Rule 2(1) CPC and the provisions of Order 9, Rule 13 did not apply to the case. The second contention is that there was in any case no sufficient cause for setting aside the ex parte decree. 6. Having heard arguments at great length I am of opinion that the Order of the lower appellate Court must be upheld. Sub-rule (2) of Rule 2 of Order 17 added by this Court runs thus, Where before any such day the evidence or a substantial portion of the evidence of any party is recorded and such party fails to appear on such day, the Court may, in its discretion, proceed with the case as if such party were present and may dispose of it on the merits. 7. This sub-rule is clearly inapplicable as the Defendants had produced no oral evidence and none had been recorded by the Court on his behalf. Rule. 7. This sub-rule is clearly inapplicable as the Defendants had produced no oral evidence and none had been recorded by the Court on his behalf. Rule. 3 which was substituted by this Court in place of the original Rule 3 to Order 17 says, Where any party to a suit to whom time has been granted fails without personable cause to produce his evidence or to cause the attendance of his witnesses or to comply with any previous order of to perform any other act necessary to the further progress of the suit for which time has been allowed the Court may notwithstanding such default and whether such patty is present or not proceed to decide the suit on the merits. 8. Strictly speaking the case does not fall under this rule either, as no time was granted by the Court on the 7th November, 1941 to the Defendants to produce evidence or to comply with any order of the Court or perform any other act necessary for the further progress of the suit. On the other hand it was the Plaintiff's general agent who made the application for the express purpose of obtaining an adjournment on the ground that his principal, namely, the Plaintiff was too ill to appear on that date and wanted another date to come to Court. This application was granted by the Court. It is obvious, therefore, that the adjournment of the case on that day was made at the instance of the Plaintiff and not the Defendants. If this is so, Rule 3 will have no application. Having regard to the circumstances of the case it seems to me that the proper rule applicable is Rule 2 of Order 17 which says that, Where on any day to which the hearing of the suit is adjourned the parties or any of them fail to appear the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such order as it thinks at, 9. and this was the rule under which the lower appellate Court has purported to Act. Whether a case falls under Rule 2(1) or Rule 2(2) or Rule 3 of Order 17 is a question which depends upon the facts of a particular case. and this was the rule under which the lower appellate Court has purported to Act. Whether a case falls under Rule 2(1) or Rule 2(2) or Rule 3 of Order 17 is a question which depends upon the facts of a particular case. The circumstances disclosed in the present case leave little doubt that although the trial Court had purported to Act under the latter provision and decided the suit on the merits it was clearly wrong because the circumstances did not justify his adopting that course. The mere fact that he purported to decide the matter on the merits will not make the provisions of Order 9, Rule 13 inapplicable if they are otherwise applicable to the case-see Syed Mohammad Hasan v. Syed Ali Hyder (1924) 1 O.W.N. 803 at p 806. It was held in B. Ram Dhani Singh Vs. Sunder Singh and Others that Order 17, Rule 3 is made specially applicable in a case where any party to whom time has been granted fails to perform any act necessary for the further progress of the suit. It is not applicable to a case where time is not granted to the applicant. 10. Several cases have been cited on behalf of the applicant but these are in my opinion inapplicable. The case in AIR 1934 171 (Oudh) was a case in which Order 17, Rule 3 was held to apply to a case where the counsel in the absence of a party had asked for an adjournment and on the same being refused, had withdrawn from the case. It was held that the case was not decided ex parte. In Hat Dayal v. Ram Ghulam 1943 O.A. 282 : A.W.R (C.C.) 150 : O.W.N. 461 the Plaintiff bad asked for an adjournment which was granted upon the condition of his paying costs and in default the suit was to be struck off. The costs were not paid and the suit was dismissed on the next date of hearing. In Sidh Nath alias Ganga Sidh v. Ganga Prasad 1943 A.L.W. 517 the facts were that the Court had ordered the judgment-debtor to deposit the money offered by him by a certain date. He failed to comply with the order whereupon the Court passed a final decree for foreclosure. In Sidh Nath alias Ganga Sidh v. Ganga Prasad 1943 A.L.W. 517 the facts were that the Court had ordered the judgment-debtor to deposit the money offered by him by a certain date. He failed to comply with the order whereupon the Court passed a final decree for foreclosure. It was rightly held that the provisions of Rule 3 of Order 17 were applicable as this was an adjourned date. In the case reported in-Idris Ahmad Khan v. Zahir Ahmad Khan 1945 A.L.W. 201, it was held that Order 17, Rule 2 is applicable only to an adjourned heading and not to the first hearing of a suit. In that case the Plaintiff was absent on the first hearing and his counsel applied for adjournment. When this was refused, the Plaintiff's counsel withdrew saying that he had no further instructions. The Court then recorded the Defendant's evidence and dismissed the suit on merits. 11. It was held that Order 17, Rule 2 did not apply and the Court should not have dismissed the suit on merits but should have passed an order under Order 9, Rule 8 so that the Plaintiff could make an application for restoration of the suit under Order 9, Rule 9 Code of Civil Procedure. 12. I am satisfied that the view taken by the lower appellate Court was correct. 13. The second question whether the Defendants had made out a sufficient cause for setting aside the ex parte decree is one of fact and cannot, be interfered with u/s 115 CPC see Aditya Prasad v. Jagdish Prasad (1928) 5 O.W.N. 873. Even if a contrary view of the facts were permissible, it cannot be said that the Court below had no jurisdiction to decide the question of sufficiently or otherwise of the cause. But I am by no means satisfied that the decision is not justified. It is true that the application was not made by the Defendants on the very next day and was made nearly a month afterwards but as has been pointed out by the lower appellate Court, the affidavit filed by the Defendants showed that they had arrived at the place of hearing on the same day and this fact was not controverter by the Plaintiff. I hold therefore, that this contention also has no force. 14. Accordingly the revision fails and is dismissed with costs.