Judgment 1. This is an application under S.115(1) of the Civil P.C. (hereinafter referred to as the Code) against the order dated 4-2-1977 passed by Shri S.N. Sinha, Second Additional Subordinate Judge, Dhanbad, in Misc. case No. 8 of 1976 under O.IX. R.13 of the Code setting aside the decree dated 27-7-1976 passed in title suit No. 39 of 1973. 2. The facts leading to the present application are that the plaintiff had filed title suit No. 39 of 1973 against defendants Nos. 1 and 2. In the said suit, defendant No. 1 never appeared, But defendant No. 2 had appeared and had filed his written statement, 14-7-1976 was an adjourned date for hearing, when the plaintiff and defendant No. 2 filed their respective hazris and the suit was taken up for hearing. On that date one witness on behalf of the plaintiff was examined who was also cross-examined on behalf of the defendant No. 2 and thereafter the said witness, who had also proved certain documents, was discharged before lunch recess. When however, the further hearing of the suit was taken after the lunch recess, neither the lawyer for the defendant No. 2 nor any person an behalf of the defendant No. 2 was present and an unstamped petition was filed on behalf of defendant No. 2 for adjourning the trial of the case which was, however, not even moved, and the lawyer for the defendant No. 2 also did not turn up even though he was informed by the peon of the Court. The unstamped petition was, therefore, rejected and the defendant No. 2 was directed to get ready to proceed with the case by 3 P.M. Later on when further hearing of the suit was taken up at 3 P.M. only the plaintiff was present but the defendant No. 2 was not present and one more witness was examined on behalf of the plaintiff who proved certain documents, and, since nobody appeared on behalf of the defendant No. 2 to cross-examine him, the witness was discharged. Thereupon the plaintiffs case was closed and argument was heard on behalf of the plaintiff and the suit was adjourned to 22-7-1976 for judgement. 3. Thereupon the plaintiffs case was closed and argument was heard on behalf of the plaintiff and the suit was adjourned to 22-7-1976 for judgement. 3. In the meantime on 19-7-1976, defendant No. 2 filed a petition with a prayer to allow him to examine his witness to which a rejoinder was filed by the plaintiff on 20-7-1976 and on 22-7-1976 the defendant No. 2 filed another petition for recalling the plaintiffs witness for cross-examining him. After hearing the lawyers of both sides the prayer of defendant No. 2 for permission to cross-examine the witness of the plaintiff and to lead evidence was rejected by order dated 24-7-1976. Thereafter on 27-7-1976 the judgement was delivered decreeing the plaintiffs suit against both the defendants which was, however, described in the judgement as ex parte. 4. Thereafter, defendant No. 2 filed a petition under O.IX, R.13 of the Code which was registered as Misc. case No. 8 of 1976, praying for setting aside the decree dated 27-7-1976 and for restoring the title suit and for hearing it on merit. The plaintiff had filed a rejoinder in the said Misc. Case No. 8 of 1976 for rejecting the petition of defendant No. 2 for setting aside the said decree. The said Misc. case No. 8 of 1976 was allowed by order dated 4-2-1977 and the decree dated 27-7-1976 was set aside and the suit was restored. 5. It is against the said order dated 4-2-1977 that the plaintiff has preferred the present revision application. 6. Mr. The said Misc. case No. 8 of 1976 was allowed by order dated 4-2-1977 and the decree dated 27-7-1976 was set aside and the suit was restored. 5. It is against the said order dated 4-2-1977 that the plaintiff has preferred the present revision application. 6. Mr. Pandey Akhileshwar Nath Roy the learned counsel for the plaintiff-petitioner, has contended that since on 14-7-1976, which was the date fixed for hearing, defendant No. 2 had filed Hazari and had participated in the trial of the suit inasmuch as one witness examined on behalf of the plaintiff was cross-examined on his behalf, and, thereafter, when the further hearing of the suit was taken up after lunch recess an unstamped time petition was filed on his behalf which was not even moved and was consequently rejected and thereafter defendant No. 2 was directed to proceed with the case at 3 P.M. when also the defendant No. 2 did not turn up, with the result that another witness on behalf of the plaintiff was examined who, of course, could not be cross-examined because of the absence of defendant No. 2, and thereafter the plaintiff had closed his case and the suit was adjourned for judgement, the case was really covered by O.XVII, R.3(a) of the Code to which the provisions of O.IX, Rule 13 of the Code have got no application and the remedy of defendant No. 2, if any, was by way of appeal against the judgement and decree D/- 27-7-1976 which, though, described as ex parte, was really a contested one, as on the date the trial of the suit was taken up and was also concluded, the defendant No. 2 had appeared and had participated in the trial in the first hour but had subsequently left if after lunch-recess. 7. I see much force in the aforesaid contention of the learned counsel appearing for the plaintiff-petitioner that, in the circumstances of the case mentioned above, it was a case covered by R.3(a) of O.XVII of the Code to which the provisions of O.IX, R.13 of the Code do not apply, and the remedy of the defendant No. 2, if any was by way of appeal and not by way of an application under O.IX, R.13 of the Code. 8. 8. Consequently, it must be held that in setting aside the said judgement and decreed dated 27-7-1976 of title suit No. 39 of 1973 in Misc. Case No. 8 of 1976 filed by defendant No. 2 under O.IX, R.13 of the Code, the learned Additional Subordinate Judge acted in exercise of his jurisdiction illegally, and hence the said order dated 4-2-1977 passed by him has got to be set aside. 9. Accordingly, the revision application is allowed and the impugned order dated 4-2-1977 passed in Misc. case No 8 of 1976 under O.IX, R.13 of the Code is set aside. There will be no order as to cost.