SHASHI KANT GUPTA, J. This is a writ petition for quashing the im pugned orders dated 13. 1. 2005 passed by respondent No. 1, and 10. 2. 2004 and 10. 9. 1996, passed by respondent No. 2. 2. The factual background in a nut-shell as follows : The respondent No. 3 (hereinafter referred to as landlord) filed a S. C. C. Suit No. 3 of 1987 against the petitioner No. 1 and his father for recovery of arrears of rent and enactment on the ground that the landlord is owner of the property in dispute and was in the tenancy of petitioner No. 1 @ 312. 50 per month and the petitioner No. 1 neither paid rent nor electric dues etc. , since 1. 8. 1986. 3. The plaintiff landlord also impleaded father of the petitioner No. 1 as defendant in the suit who died during the pendency of suit and his legal heirs were brought on record. The suit was contested by the petitioner and the other legal heirs of his father. 4. In the said suit, evidence of the parties was recorded and the case was fixed for argument but the defendant absented himself/and the suit was heard and decreed ex parte vide judgment and decree dated 10. 9. 1996 against the peti tioners for arrears of rent and ejectment only. The petitioners No. 2 to 5 moved an application on 17. 1. 1997 under Order IX, Rule 13, C. P. C. arraying petitioners No. 1 (Noor Mohd.) and landlord as respondents, which was registered as Misc. Case No. 5 of 1997 and they also field objections on 25. 1. 1997 under section 47, C. P. C. which was registered as Misc. Case No. 3 of 1997. Both the Misc. cases were dismissed in default on 24. 10. 998. The landlord has filed both the afore said applications before this Court as Annexure C. A.-l and C. A.-2 along with the counter-affidavit. 5. After the rejection of the applications of petitioner Nos. 2 to 5 under Order IX, Rule 13, C. P. C. , petitioner No. 1 thereafter filed an application un der Order IX, Rule 13of C. P. C. for setting aside ex parte decree dated 10. 9. 1996 on 3. 12. 5. After the rejection of the applications of petitioner Nos. 2 to 5 under Order IX, Rule 13, C. P. C. , petitioner No. 1 thereafter filed an application un der Order IX, Rule 13of C. P. C. for setting aside ex parte decree dated 10. 9. 1996 on 3. 12. 1999, after the expiry of more than three years wherein it was alleged that after the evidence of the parties was closed, the matter was fixed for ar gument but his Counsel did not inform him about the development of the case, as such he could not know about ex parte hearing. It was only on 1. 11. 1999, he came to know about ex parte decree when he was asked by the plaintiff to va cate the shop. He immediately thereafter contacted his Counsel on 2. 12. 1999, who moved an application for inspection of the record on the next date i. e. , 3. 12. 1999. Learned Counsel inspected the record and moved an application on 3. 12. 1999 for recalling the ex parte judgment and decree. The Trial Court vide order dated 10. 8. 2004 dismissed the restoration application of the petitioner No. 1. Thereafter Revision No. 6 of 2004 was filed against the rejection of restoration application and the said revision was also dismissed by First Additional District Judge, Raebareli. Hence this writ petition. 6. Learned Counsel for the petitioner has stated that evidence of both the parties were recorded by the Court below, therefore, in view of Order XVII, Rule 2, C. P. C. , the Trial Court was bound to pass the order on the merits after considering the evidences, pleading of the contesting parties. The Trial Court has passed the decree without discussing the averments made in the written statement and the evidence of the petitioners and so, according to learned Counsel for the petitioner the decree has been passed in utter disregard to the provision of Order XVII, Rule 2, C. P. C. , as a result the impugned judgment and decree passed by the Trial Court is non-est, void and without jurisdiction. 7. On the other hand learned Counsel for the landlord has stated that the petitioner did not challenge the judgment and decree dated 10. 9. 7. On the other hand learned Counsel for the landlord has stated that the petitioner did not challenge the judgment and decree dated 10. 9. 1996 on merits, but chosen to file an application under Order IX, Rule 13, C. P. C. , for set ting aside the decree. Thus, the scope of interference is very limited and the Court has only to satisfy whether the defendants-petitioners were prevented by sufficient cause from appearing when the suit was called out for hearing. It is further submitted that in the present case the petitioner initially had ap peared after the insurance of summons before the Trial Court, and submitted his written statement and adduced evidences and thereafter, to delay the matter did not appear before the Court and deliberately allowed the matter to pro ceed ex parte. It is also submitted that the petitioners No. 2 to 5 who are the family members of petitioner No. 1 had filed a restoration application on 27. 1. 1997 and objection under section 47 of 25. 1. 1997 with the allegation that the petitioner No. 1 is in collusion with the landlord, however, the same was dismissed on 24. 10. 1988 in default. It is further submitted that the petitioner No. 1 and petitioners No. 2 to 5 are living together in the same house, but still the petitioner No. 1 did not join other petitioners to file restoration application in the year 1997. Nearly after a lapse of about three years the petitioner filed restoration application for recalling ex parte judgment and decree on frivolous grounds knowing fully well that one restoration application filed by the fam ily members of petitioners No. 2 to 5 already stood dismissed. It is further sub mitted that the Court has to see whether the petitioner was prevented by suf ficient cause from appearing when the suit was called out for hearing, how ever, the petitioner failed to satisfy the Court below. The Court below has recorded a categorical finding that the petitioners deliberately did not appear before the Court on the date of hearing and did not assign any sufficient reasons for recalling ex parte judgment and decree and failed to assign any sufficient good reasons for filing the restoration application after three years. 8. Heard learned Counsel for the parties and perused the record. 9. 8. Heard learned Counsel for the parties and perused the record. 9. It is notable that ex parte judgment and decree was passed in the year 1996 and thereafter other family members of the petitioner No. 1 who were staying in the same house filed restoration application under Order IX, Rule 13, C. P. C. to recall ex parte judgment and decree dated 10. 9. 1996, but the petitioner No. 1 who is the main tenant, and alleged to be carrying on the business from the said shop deliberately did not choose to file restoration application alongwith other family members in 1997 and remained silent till 1999 and thereafter in December, 1999 after the lapse of more than three years filed restoration application mainly on the ground that he was not aware of the date of hearing as his Counsel did not inform him of the date. 10. The Court below has recorded a categorical finding that the Counsel for the petitioner, who was appearing before the Court below had full knowledge about ex parte proceeding of the case, but still the petitioner did not chose to appear before the Court below. It is also very unbelievable that even though the petitioner No. 1 was residing alongwith other family members in the same house, but still he chose not to join alongwith the other persons in the restora tion application filed in 1997, and only after three years in 1999 the petitioner No. 1 filed a restoration application on the ground that he came to know about ex parte decree only on 1. 11. 1999 when he was asked by the plaintiff to vacate the shop. The aforesaid facts clearly show that the petitioners were not at all interested in pursuing the matter despite having full knowledge about the de cree passed against them on 10. 9. 1996. The finding has also been recorded by the Court below that provision of Rule 89 of the General Rule (Civil) was also complied with. 11. It has also come on the record that the petitioners did not file any con donation application under section 5 of Indian Limitation Act for condoning the delay in filing the restoration application even though restoration application was filed after more than three years from the date of passing of the decree. 11. It has also come on the record that the petitioners did not file any con donation application under section 5 of Indian Limitation Act for condoning the delay in filing the restoration application even though restoration application was filed after more than three years from the date of passing of the decree. Now this writ petition has been filed jointly by all the petitioners, although the petitioners No. 2 to 5 in their restoration application filed in 1997 had made allegations that petitioner No. 1 is in collusion with the landlord. 12. Solitary, argument advanced by learned Counsel for the petitioner is that the judgment and decree dated 10. 9. 1996 is void and non-est on the ground that while passing the judgment and decree dated 10. 9. 1996, this Court did not comply with the provisions of Order XVII, Rule 2, C. P. C. by not considering the pleading and evidences of the petitioner, and so it cannot be said that the order was passed on merits and has placed reliance on the judgments of Apex Court in (1) B. Janakiramaiah Chetty v. A. K. Parthasarthi and others 2003 (51) ALR 285 (SC)=2003 (5) AIC 12 (SC ). (2) Chiranjilal Shrial Goenka v. Jasjit Singh and others (1993) 2 SCC 507 and (3) State of Orissa and others v. Brundaban Sharma and another 1995 Supp (3) SCC 249. 13. For deciding the contention of learned Counsel for the petitioner it is useful to refer the provision of Order XVII, Rules 2 and 3 of C. P. C. and Order IX, Rule 6 of C. P. C. , which are quoted below: "2. Procedure if parties fail to appear on day fixed.- 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 IX or make such other order as it thinks fit. [explanation.- Where the evidence or a substantial portion of the evi dence of any party has already been recorded and such party fails to ap pear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present] HIGH COURT AMENDMENTs Allahabad.- In Order XVII, in Rule 2, insert the following, namely : "where the evidence, or a substantial portion of the evidence, of any party has already been recorded, and such party fails to appear on such day, the Court may in its discretion proceeded with the case as if such party were present, and may dispose of it on the merits. Explanation.- No party shall be deemed to have failed to appear if he is either present or is represented in Court by an agent or pleader, though engaged only for the purpose of making an application. " (w. e. f. 28. 5. 1943) [ed.- This amendment relates to Rule 2 prior to its amendment made by the Central Act 104 of 1976, section 68 (w. e. f. 1. 2. 1977 ). ] 3. Court may proceed notwithstanding either party fails to produce ev idence, etc.- Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, [the Court may, notwithstanding such de fault, - (a) if the parties are present, proceed to decide the suit forthwith, or (b) if the parties are, or any of them is, absent, proceed under Rule 2] xx xx xx Order IX, Rule 6, C. P. C. 6. Procedure when only plaintiff appears.- (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then - [ (a) When summons duly served.- If it is proved that the summons was duly served, the Court may make an order that the suit be heard ex parte. Procedure when only plaintiff appears.- (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then - [ (a) When summons duly served.- If it is proved that the summons was duly served, the Court may make an order that the suit be heard ex parte. ] (b) When summons not duly served.- It is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant; (c) When summons served but not in due time.- If it proved that the summons was served on the defendant but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant. (2) Where it is owing to the plaintiffs default that the summons was not duly served was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement. " 14. Bare reading of the provision of Order XVII, Rules 2 and 3 of C. P. C. clearly indicates that argument of learned Counsel for the petitioner is totally misconceived and without any basis. First of all the order dated 10. 9. 1996 has been passed by the Courts below on the merits. At the very out set the Court be low while passing the decree observed that it had heard the argument and pe rused the evidence on record and thereafter considered the matter on the mer its. It is true that the Court below did not specifically refer to the pleadings and evidences of the petitioner, but the order has been passed on the merits. Even, if it is assumed that the order has not been passed on the merits, still the petitioner has got no case. It is true that the Court below did not specifically refer to the pleadings and evidences of the petitioner, but the order has been passed on the merits. Even, if it is assumed that the order has not been passed on the merits, still the petitioner has got no case. In that event, the decree in the light of Order XVII, Rule 2 of C. P. C. will be treated as ex parte and according to the said provision the Court where, on any day to which the hearing of the suit is adjourned and the parties have failed to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX of make such other or der as it thinks fit. It is not mandatory for the Court to decide the matter on merits. The Court has discretion to pass the order in one of the modes directed on that behalf under Order IX or may pass such other order as it thinks fit. In view of the above, even if the order dated 10. 9. 1996 is treated to be one passed not on merits it would still come within the meaning of an ex parte judgment. In any event, the said order cannot be said to be void and non est or without juris diction. Thus, the decision of Apex Court in the case of Chiranji Lal Shri Lal Goenka (supra), is not applicable to the present case, wherein it was held that the Court of probate has exclusive jurisdiction and Civil Court in original side or arbitratory even on consent of parties, has no jurisdiction to adjudicate upon proof or validity of Will propounded by the executor. In the light of aforesaid facts the Court had held that the decree passed is without jurisdiction and is non-est. 15. The decision of State of Orissa and others v. Brundaban Sharma and another (supra), is not applicable in the present matter. That matter relates to Orissa Estate Abolition Act, 1951, wherein no limitation was prescribed. The tenancy right was conferred by the Tehsildar without obtaining prior confirma tion from the Board of Revenue and the said order of Tehsildar was held to be void and it was held that the validity of non-est can be questioned. That matter relates to Orissa Estate Abolition Act, 1951, wherein no limitation was prescribed. The tenancy right was conferred by the Tehsildar without obtaining prior confirma tion from the Board of Revenue and the said order of Tehsildar was held to be void and it was held that the validity of non-est can be questioned. The facts of the case have absolutely got no bearing on the case in hand and the ratio of the said case cannot be applied in the present matter. The Limitation Act clearly prescribes the time limit for filing restoration application under Order IX, Rule 13 of C. P. C. and unless and until the Court is satisfied by explanation given by the defendant, the ex parte order cannot be recalled. 16. The decision in B. Jankiramiah Chetty v. A. K. Parthasarthi and oth ers (supra), also does not in any way held the petitioner, although it definitely supports the case of landlord, wherein it has been held that in absence of any indication as to what evidence was evaluated and/or whether merits were tested, decree passed by the Court is in the nature of an ex parts, decree and is subject matter of Order IX, Rule 13 of C. P. C. Moreover, in that case the Court has not at all applied its mind and there was not even a whisper on merits in the judgment. Apex Court has no where observed that in case judgment is not passed on the merits under Order XVII, Rule 2 the order would be void and non-est. 17. In the present case there is no pleadings in the restoration application that the Court below did not have any jurisdiction to pass the order nor it has been pleaded that any fraud was played. For the sake of argument even if it is presumed that there was any irregularity in passing of the order, yet it cannot be said that the decree has been passed without jurisdiction or is void ab initio. 18. On the other hand learned Counsel for the landlord has also cited deci sions in the case of (1) Nirmala Devi v. Additional District Judge and others 2006 (2) ARC 768. (2) Allah Rakha v. Third Additional District Judge, Bareilly and others 2006 (63) ALR 290 and (3) Mahabir Singh v. Subhash and others 2008 (70) ALR 612 (SC ). 19. (2) Allah Rakha v. Third Additional District Judge, Bareilly and others 2006 (63) ALR 290 and (3) Mahabir Singh v. Subhash and others 2008 (70) ALR 612 (SC ). 19. This Court in Nirmala Devi (supra) has held as follows in Paragraphs 5 and 6, which are quoted below : "5. As regards the other case of N. Balakrishnan (supra), the delay in moving the application for restoration of the suit under Order IX, Rule 13, C. P. C. , the Trial Court had found the explanation given by the defendant-application as satisfactory and the High Court had reversed that order of the Trial Court. Here, the two Courts below were of the concurrent view that the explanation given by the petitioner for the delay in moving the Court for setting aside the ex parte decree was not duly substantiated by co gent piece of evidence. Therefore, the principle of that case also would not be applicable on the facts of this case. 6. The Courts below have, therefore, very rightly found that the peti tioner had put in appearance in the Court and the vakalatnama was filed on record and she had no ground to say that no knowledge of the ex parte decree could be had by her till 12. 12. 2000. In the aforesaid view of the mat ter if the Courts below have rejected the petitioners prayer for setting aside the ex parte decree after condoning the delay in filing the applica tion, I do not find any justifiable reason to interfere in the orders in writ ju risdiction. " 20. In the case of Allah Rakha and another (supra), the suit was decreed ex parte on 10. 5. 1976 and after six years on 10. 4. 1982 defendant moved an appli cation under Order IX, Rule 13 for setting aside ex parte decree and the same was dismissed and appeal too was dismissed. It was held that petitioner had knowledge of ex parte decree much prior to the date as disclosed in the recall application as such relief for quashing ex parte decree itself is misconceived and has further held that the petitioners could have questioned the merits of ex parte decree by way of first appeal which the petitioners have not done and finally concluded that merits of ex parte decree cannot be a subject matter of adjudication under Article 226 of the Constitution. 21. Similarly, in the present case too, judgment and decree dated 10. 9. 1996 has not been challenged by the petitioner on merits before the Superior Court, but only preferred restoration application under Order IX, Rule 13 of C. P. C. , that too after a lapse of 3 years without filing any condonation application. This Court cannot look into the merits of judgment and decree dated 10. 9. 19. 96 passed against the petitioner in a proceedings arising out of the rejection of restoration application filed under Order IX, Rule 13 of C. P. C. The scope of the writ petition is only to see whether the petitioner was prevented by sufficient cause form appearing when the suit was called for hearing. Over and above, in the present case neither the petitioner has filed condonation application under section 5 of the Limitation Act nor assigned sufficient cause for not appearing when the suit was called for hearing. The petitioner but for his wilful conduct would have known of the date of hearing in sufficient time to enable him to appear and answer the plaintiffs claim. 22. The only plea taken by the petitioner in the Court below was that he was not informed by his Counsel, who admittedly was residing nearby to the house of petitioner and also it is a admitted fact that prior to the filing of restoration application by the petitioner No. 1, restoration application filed in 1997 by other family members namely petitioners No. 2 to 5 already stood dis missed. Since the petitioner No. 1 is residing in the same house alongwith other petitioners therefore, he. ought to have knowledge of passing of ex parte decree. In terms of section 3 of the Limitation Act, 1963 the Court shall have no jurisdiction to entertain any suit or application if the same has been filed after expiry of limitation, that too without application of delay codonation appli cation. The Court below could not have ignored the said jurisdictional fact. This view has been endorsed by the Apex Court in the case of Mahabir Singh (supra ). 23. Learned Counsel for the petitioner-landlord has urged that, since the passing of judgment and decree dated 10. 9. 1996, the petitioner has not de posited any amount towards rent/damages. The Court below could not have ignored the said jurisdictional fact. This view has been endorsed by the Apex Court in the case of Mahabir Singh (supra ). 23. Learned Counsel for the petitioner-landlord has urged that, since the passing of judgment and decree dated 10. 9. 1996, the petitioner has not de posited any amount towards rent/damages. Be that, as it may, it is open for the landlord-petitioner to take appropriate proceedings against the tenant for recovery of the arrears of rent and damages. 24. Before parting, it is necessary to observe that the tenant without any rhyme and reason has been successful in prolonging the proceeding since 1986. Therefore, in case if execution proceeding is taken by the landlord, it may be disposed of as expeditiously as possible in accordance with law. 25. In view of the above discussions I do not find any illegality or infirmity in the order passed by the Court below. This writ petition is accordingly dismissed with costs. Petition Dismissed. .