JUDGMENT : Misra, J. - Original Suit No. 167 of 1960 had been adjourned to 16-4-1963 on the application for time filed by the Defendants when the Plaintiff was ready for hearing. On that date Plaintiff filed hazira. Defendants filed a time petition on the ground that their main witness D.C. Das was ill, and as such, they were not ready with the case. This application was rejected. The learned Munsif also made clear in his order that if the Defendants 80 wanted, they could examine their particular witness on commission ready. Later in the day, both parties became ready. That order may be quoted in full for bringing out the point clearly. Both parties are ready. Suit opened. Heard the facts of the case for both sides. Plaintiff?s advocate raised the question of onus; The Defendants argue that when they have purchased the property from a lady who was separate, it is for the Plaintiff to prove that he succeeds to the property by survivorship. Under such circumstances without any document before me, the presumption of jointness is there and in support of the the Plaintiff files the title deed and the rent receipts of 1960. Therefore, to my conclusion the onus is on the Defendants who take the plea of partition and to have purchased the property from the rightful heir. Hence ordered that the Defendants do begin with evidence. Later in the day at about 9-15 a.m. the learned Munsif passed the following order- Defendants? lawyer vacated the Court and none did appear on repeated calls. So I found when the Defendants are not coming forward with evidence, I closed that side and took the evidence of the Plaintiff. None could come also to cross-examine. Hence evidence of Plaintiff closed. Exts. 1 and series and A to C are marked. Heard the Plaintiff. Suit posted for orders to 17-4-1963. On 17.4.1963, the judgment was delivered. On 22-4-1963, an application under Order 9, Rule 13, CPC was filed. On 13-7-1963, the learned Munsif passed the following order- Petitioners file time petition. Opposite Party is present. In the suit the judgment was delivered on contest under Order 17, Rules 2 and 3 but not under Order 9 Code of Civil Procedure. So time allowed only to hear on maintainability of the petition. Thus no evidence has been taken in the case. Only arguments were heard. Opposite Party is present. In the suit the judgment was delivered on contest under Order 17, Rules 2 and 3 but not under Order 9 Code of Civil Procedure. So time allowed only to hear on maintainability of the petition. Thus no evidence has been taken in the case. Only arguments were heard. On 23-7-1963 the application was dismissed. Against that order an appeal was filed before the District Judge who confirmed the order of the trial Court. Against the appellate order, the civil revision has been filed. 2. Before I take up the case, it is worthwhile observing that the order dated 13-7-1963 unequivocally indicates that the learned Munsif hardly understood the case. He stated that the judgment was delivered on contest under Order 17, Rules 2 and 3 but not under Order 9. It is difficult to follow what the learned Judge meant by this sentence. 3. Mr. S.C. Mohapatra attacked the appellate judgment on four grounds: (i) Hearing of a suit begins with Order 18, Rule 2 CPC and that Rule 1 of the Order does not come within the purview of hearing. After the parties opened the case and discussed the question of right to begin and the learned Munsif gave a decision that the Defendants had right to begin, Defendants retired, and as such, the retirement was before the beginning of the hearing and Order 17, Rule 3, CPC has no application to such a case. (ii) Order 17, Rule 3 has no application as the evidence in the case was taken up on 16-4-1963 and the judgment was not delivered on that date forthwith but was deferred to the next day (17-4-196:3). (iii) Even if the hearing had begun when the question of right to begin was discussed, after the retirement of the Defendants? advocate from the case, Order 17, Rule 3 has no application. (iv) Order 17, Rule 3 would have application only if there were some materials on record on the basis of which a decision could be arrived at and not otherwise. By the time the Defendants retired, there were 110 materials on record. The evidence on the Plaintiff?s side was taken after retirement. Thus there being no materials on record before retirement, Order 17, Rule 3 has no application. All these contentions require careful examination. 4. The first contention, though attractive, has no substance. By the time the Defendants retired, there were 110 materials on record. The evidence on the Plaintiff?s side was taken after retirement. Thus there being no materials on record before retirement, Order 17, Rule 3 has no application. All these contentions require careful examination. 4. The first contention, though attractive, has no substance. The caption of the Chapter dealing with Order 18 is to the effect Hearing of The Suit And Examination of Witness. Order 18, Rule 1 comes within that Chapter and is not excluded from the purview of hearing. The language of Rule 1 also leads to the same conclusion. Order 18, Rule 1 may be quoted- Right to begin.-The Plaintiff has the right to begin unless the Defendant admits the facts alleged by the Plaintiff and contends that either in point of law or on some additional facts alleged by the Defendant the Plaintiff is not entitled to any part of the relief which he seeks in which case the Defendant has the right to begin. Thus the Rule in the first instance enjoins an obligation of the right to begin on the Plaintiff. This is, however, subject to certain riders. Controversy usually starts between the parties as to who has the right to begin. When the controversy starts, it is incumbent upon the Court to decide the controversy and give its judgment thereon. Thus the determination of the question as to which party has a right to begin is an integral part of the hearing itself, and under the scheme, this has been put as the first Rule. A perusal of the second Rule would confirm the aforesaid view. Rule 2 without the Orissa amendment is as follows: Statement and production of evidence: (1) On the day fixed for the hearing of the suit or any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. (2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case. (3) The party beginning may then reply generally on the whole.? So on the date of hearing, the party having the right to begin shall state his case and produce evidence. (2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case. (3) The party beginning may then reply generally on the whole.? So on the date of hearing, the party having the right to begin shall state his case and produce evidence. As a corollary thereof, it must be determined by the Court as to which party has a right to begin. It may be that in point of time the determination of the question as to which party has the right to begin is slightly anterior to the actual leading of evidence. But the whole transaction is an integral part of the hearing. Mr. S.C. Mohapatra placed reliance on the first two sub-rules of Rule 2 in support of his contention that under the Code of Civil Procedure, both the parties cannot be simultaneously called upon to open the case. He referred to the order sheet of the day to the effect- Suit opened. Heard the facts of the case for both the sides. When a case is opened for the purpose of determining the question of right to begin, both parties must be heard one after the other. Court?s power is not restricted as to in what manner parties would be heard. Rule 2 merely gives indication as to the rights of the parties and not to the power of the Court. I am satisfied that the hearing of the case began on 16-4-1963. At first Defendants applied for time. When their petition was rejected, they voluntarily took part in hearing. Arguments were advanced on their behalf that they had no right to begin and that it was the Plaintiff who was to lead evidence. Only after the Court gave its decision-whether rightly or wrongly and possibly wrongly, that the Defendants retired from the case. The first contention has no force and must be rejected. The third contention is indirectly connected with the first contention. Once it is held that the Defendants took part in the hearing and thereafter absented, it cannot be contended that the withdrawal of the advocate for the Defendants thereafter amounts to their non-appearance in the case. That is a case of clear appearance in the case, taking part in the hearing for sometime and absenting from the case thereafter. 5. Once it is held that the Defendants took part in the hearing and thereafter absented, it cannot be contended that the withdrawal of the advocate for the Defendants thereafter amounts to their non-appearance in the case. That is a case of clear appearance in the case, taking part in the hearing for sometime and absenting from the case thereafter. 5. The second contention that unless the judgment was delivered on 16-4-1963, Order 17, Rule 3 has no application, is based on AIR 1953 Nag 222. The language of the Rule is that the Court may, notwithstanding such default, proceed to decide the suit forthwith. The word "forthwith" would qualify the word "proceed" and not "to decide". Emphasis has been laid in the Nagpur decision on "forthwith" being directly connected with the decision being given. I am unable to accept such a construction. Even in an ex-parte case, large many witnesses may be examined and voluminous documents may be exhibited. It cannot be contended with any force that unless the judgment is delivered on that day, it cannot be a judgment on merits and that Order 17, Rule 3 would have no application. A comparison may be made of the aforesaid expression with the language used in Order 15, Rule 4, CPC which says- Where the summons has been issued for the final disposal of the suit and either party fails without sufficient cause to produce the evidence on which he relies the Court may at once pronounce judgment.... The italics expression may be contrasted with the expression in Order 17, Rule 3 "proceed to decide the suit forthwith". With respect, I may say that the aforesaid Nagpur decision has not been correctly decided. A similar view has been taken by a learned single Judge in AIR 1964 J.&K. 79 . The second contention must accordingly be rejected. 6. The last contention is that at the time when the Defendants? advocate vacated the Court, there were no materials on record on the basis of which a decision could be given, and as such, Order 17 Rule 3 has no application. The factual basis for the argument is that after the Court decided that the Defendants had the right to begin, Defendants? advocate vacated the Court and thereafter evidence on the side of the Plaintiff was taken. Mr. S.C. Mohapatra lays stress on the fact that prior to the Defendants? The factual basis for the argument is that after the Court decided that the Defendants had the right to begin, Defendants? advocate vacated the Court and thereafter evidence on the side of the Plaintiff was taken. Mr. S.C. Mohapatra lays stress on the fact that prior to the Defendants? advocate vacated the Court, there was no evidence on record, and as such, no material on the basis of which a decision could be given one way or the other. The argument equates evidence with materials. There is no justification for such a narrow construction. Order 17 Rule 3 does not in terms refer to any materials. In some decisions, a view (though not a clear case has been cited before me) has been taken that as a duty has been cast on the Court to decide the suit, a decision has been assumed to be based on materials which have been equated to evidence. The point may be examined with reference to an illustration. In a suit brought by the Plaintiff for recovery of money on the basis of a handnote, the Defendant admits execution. Then hearing take place, Defendant retires from the case. u/s 118 of the Negotiable Instrument Act, a presumption is to be drawn that the promissory note duly executed was for consideration. So on the admitted case of the Defendant, a decree can be passed in favour of the Plaintiff even in the absence of that Defendant. Can it be said that no decree can be passed, because no evidence has been taken either from the Plaintiff or from the Defendant? The obvious answer would be in the negative. Though no evidence has been taken, there are clear materials on record on the basis of which a decision can be taken. The materials cannot, therefore, be equated to evidence. The last contention, therefore, has no force. 7. In the result, the Civil Revision fails and is dismissed; but in the circumstances without costs. Final Result : Dismissed