JUDGMENT : 1. Heard learned senior counsel Mr.Devan Parikh with learned advocate Mr.H.J.Karathiya for the appellant, learned senior counsel Mr.Devang Nanavati with learned advocate Mr.Saurabh Mehta for respondent Nos.1,2,6 & 7 and learned advocate Mr.Rasesh Parikh for respondent Nos.3,4 & 5. 2. By way of the present First Appeal filed under Section 96 of the Code of Civil Procedure Code, 1908, the appellant has challenged the judgment and decree dated 31.01.2020 passed by the learned 6th Additional Senior Civil Judge, Surat in Special Civil Suit No.203 of 2017 below Exhibits 1, 50 and 51, whereby the learned Judge has dismissed the suit. 3. The brief facts, leading to the present First Appeal, are as under:- 3.1 The appellant – original plaintiff filed suit seeking possession, specific performance, as well as perpetual injunction, which came to be dismissed on 31.01.2020 for want of leading evidence on behalf of plaintiff. 3.2 While dismissing Exhibit 5 application, learned trial Court directed to produce documents within 3 months from the date of order. The said order came to be challenged by way of Appeal From Order being No.41 of 2019 before this Court. This Court did not grant stay of proceedings. Thereafter, the appellant made an application at Exhibit 50 to direct defendants to demarcate vacant area and submit the map. The said application came to be dismissed by the learned trial Court on 31.01.2020 and also dismissed the suit on the same day. Hence, the present appellant before this Court. 4. The preliminary objection raised by the learned Senior Advocate Mr.Devang Nanavati for respondent No.1, 2, 6 and 7 and learned advocate Mr.Rasheh Parikh for respondent Nos. 3, 4 and 5 that appeal would not be maintainable against the order dated 30.01.2020 since the order is not a decree. 5. Hence, this Court is only considering the question about the maintainability of the present appeal and dealing with the question whether order dated 30.01.2020 amount to decree or not. Since the issue at present is in a narrow compass this Court is not going into the merits and demerits of the facts involved in the suit. Submissions of learned Senior Counsel for the appellant. 6. Learned senior counsel Mr.Devan Parikh for the appellant submits that the dismissal of the suit amounts to the decree and thus, the appeal would lie under Section 96 of the Code of Civil Procedure. Submissions of learned Senior Counsel for the appellant. 6. Learned senior counsel Mr.Devan Parikh for the appellant submits that the dismissal of the suit amounts to the decree and thus, the appeal would lie under Section 96 of the Code of Civil Procedure. Learned senior counsel for the petitioner has relied upon the following provisions in support of his submissions:- Section 2(2) of the Code of Civil Procedure, 1908 which is reproduced hereinunder:- 2. Definitions.- In this Act, unless there is anything repugnant in the subject of context- (2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within [***] section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. 6.1 The definition of decree is divided in two parts, first part refers to an adjudication determining the rights of the parties and second portion include “the rejection of a plaint”. Therefore, if plaint is rejected by pronouncement of a lower Court, it can be construed to be a decree, even if there is no conclusive determination of the rights of the parties by adjudication. 6.2 The appellant’s case is that the pronouncement of the Court falls under the first portion as well as the second portion of the definition of the term decree. By pronouncement of the lower Court, the plaint stands rejected. The only issue to be determined is whether the pronouncement amounts to an order of “dismissal for default.” 6.3 Learned senior advocate has referred Order IX Rule 6(1)(a) of the Civil Procedure Code, 1908 which is reproduced hereinunder:- “6(1)(a) When summons duly served- if it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex-parte.” 6.4 Order-IX itself is concerned with the presence or absence of the parties at the first hearing. The entire Order IX deals with the presence and absence of the parties or failure to do acts at the first hearing. The entire Order IX deals with the presence and absence of the parties or failure to do acts at the first hearing. Order-IX Rule-6(1)(a), provides that the Court can only make an order to hear the suit ex-parte against the defendant, if he does not appear. 6.5 Learned senior counsel Mr.Parikh has also referred to Order IX Rule-8 of the Code of Civil Procedure, 1908 which is reproduced hereinunder:- “8. Procedure where defendant only appears- Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, on part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.” 6.6 The said Rule provides for an eventuality where the defendant appears and the plaintiff does not appear. In such circumstances, unless the defendant admits the claim, the Court shall dismiss the suit. 6.7 Order IX Rule 9 provides that the plaintiff then cannot bring a fresh suit, but he can apply for restoration of the suit. The reliance is placed on Order IX Rule-13 of the Code of Civil Procedure, 1908 which is reproduced hereinunder:- “13. In such circumstances, unless the defendant admits the claim, the Court shall dismiss the suit. 6.7 Order IX Rule 9 provides that the plaintiff then cannot bring a fresh suit, but he can apply for restoration of the suit. The reliance is placed on Order IX Rule-13 of the Code of Civil Procedure, 1908 which is reproduced hereinunder:- “13. Setting aside decree ex parte against defendant.- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: [Provided further than no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim] [Explanation- Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.] 6.8 The said Rule 13 provides a right to the defendant for setting aside a decree passed ex parte against defendant. 6.9 Learned Senior advocate Mr.Parikh has placed reliance on Order-XV Rule-4, which is reproduced hereinunder:- “4.Failure to produce evidence- 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, or may, if it thinks fit, after framing and recording issues, adjourn the suit for the production of such evidence as may be necessary for its decision upon such issues. 6.10 The said Rule 4 provides for disposal of the suit at the first hearing. If either party fails to produce evidence, the Court may at once pronounce judgment or may frame issues and adjudicate the suit. This is not a dismissal of the suit, but empowerment of the Court to pronounce the judgment. In the course of pronouncing the judgment, the Court may either allow the suit or even dismiss the suit, but in either case it is pronouncing a judgment. It would be impossible to suggest that if the Court does so under Rule-4, such a pronouncement is not a “decree.” 6.11 Learned senior advocate has referred further Order XVII Rule 2 and 3 which is reproduced hereinunder:- “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 evidence of any party has already been recorded and such party failed to appear 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.] 3. [Explanation- Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party failed to appear 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.] 3. Court may proceed notwithstanding either party fails to produce evidence, 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 default, (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]. 6.12 Order XVII Rule 2 and 3 of the Code prescribes as to the procedure to be adopted by the Courts. If on the date the suit is adjourned, any of the parties fails to appear, the Court may proceed to “dispose of the suit” in one of the modes provided in Order-IX. The modes contemplated under Order-IX would be that if the plaintiff is absent, the suit can be dismissed for default and if the defendant is absent, the Court may proceed to ex-parte decide the suit. The explanation to Rule (3) provides that once the Court arrives at a substantial finding that the party who is absent has led substantial evidence is enough to dispose of the suit, it may decide the suit either way by allowing the plaint or rejecting it. Such a disposal would be a decree though passed in default for absence or presence of either party. 6.13 Order-XVII Rule 3 of the Code states that if time is granted to the parties to produce evidence and the parties failed to produce evidence, then there are two options. As per clause (a), if the party is present, the Court can proceed to decide the suit forthwith or (b) if the party or any of them is absent, the Court will proceed under Rule 2. In case of eventuality of clause (b), the Court can even pass an order under Order-IX for default. As per clause (a), if the party is present, the Court can proceed to decide the suit forthwith or (b) if the party or any of them is absent, the Court will proceed under Rule 2. In case of eventuality of clause (b), the Court can even pass an order under Order-IX for default. 6.14 Order-IX of the Code provides that if the defendant remains absent, the Court can only direct that the suit is to be decided ex parte and then to actually decide the suit ex parte. The suit can never be decreed by a default judgment. Secondly, as per Order-XV, if summons are issued for final disposal and if either party fails to produce evidence, the Court may at once pronounce judgment. Therefore, this is not a summarily dismissal of the suit for default. Order-XVII Rule-2 states that if the parties do not appear on the date when the suit is adjourned then, it is open to the Court to dispose of the suit in the manner provided in Order-IX. Under the explanation, however, if the Court believes that sufficient evidence is led by the defaulting party, then the Court is granted a discretion to proceed with the suit as if such party was present. In such circumstances also, the Court will then not pass a default dismissal of the suit, but will decide the suit either for the plaintiff or against him. This again, therefore, is not a summary dismissal of the suit for default. Order-IX Rule-3, if the party who is required to produce evidence by an order of the Court fails to produce that evidence, then the Court has only two options. Under clause (a), if the parties are present, the Court has to proceed to decide the suit forthwith. However, if the parties or any of them are absent, then the Court can under Clause (b) take recourse to the same action that it can take under Rule-2. 6.15 Order-XVII Rule 3 of the Code can apply even in cases where both the parties are present. Therefore, one thing is certain that if both the parties are present, then Order-XVII Rule-2 can never apply. The consistent view is that if the situation is of Order-XVII Rule-3(a), then an appeal will lie. If the situation is of Order-XVII Rule-3(b), then Order-IX application will lie. Therefore, one thing is certain that if both the parties are present, then Order-XVII Rule-2 can never apply. The consistent view is that if the situation is of Order-XVII Rule-3(a), then an appeal will lie. If the situation is of Order-XVII Rule-3(b), then Order-IX application will lie. Similarly, if the case false under Order-XVII Rule-2, then an application under Order-IX would lie for restoration. 6.16 Upon perusal of the impugned judgment would show that both the parties were present and were represented by respective Advocates. The parties were directed to remain present with evidence. Despite that, no evidence is produced. It is submitted that the case directly falls under Order-XVII Rule-3 inasmuch as both the parties were represented by lawyer who were present on that date. The Court had directed that evidence be produced, but the plaintiff has not produced evidence. The final order is also that as the plaintiff has not produced any evidence, the suit is rejected. 6.17 When there is an order of the Court requiring parties to produce evidence and evidence is not produced, the Court only has powers under Order-XVII Rule-3 (a) to proceed to decide the suit forthwith. Once it is clear that this is the only power which existed in the Court, then it must be presumed that what the Court has done is to decide the suit and such a pronouncement is, therefore, rejection of a plaint, but not a dismissal for default as contemplated under Section 2(2) of the C.P.C. and, therefore, a decree. 6.18 When no evidence is produced, then all averments in the plaint would automatically fall even a single line judgment which says that in the absence of any evidence, the suit is rejected is sufficient consideration even on merits. 6.19 Once issues are framed and the matter is proceeded for trial, if the parties are present, the Court only had powers to decide on merits and cannot pass a default dismissal of the suit. There is no power under the Civil Procedure Code when the parties are present to pass default dismissal once trial commences. 6.20 The Appellants have already applied to the lower Court to get a decree drawn and the lower Court has refused the same by an order. Submissions of learned Senior Counsel of Respondent Nos.1, 2 6 and 7 7. There is no power under the Civil Procedure Code when the parties are present to pass default dismissal once trial commences. 6.20 The Appellants have already applied to the lower Court to get a decree drawn and the lower Court has refused the same by an order. Submissions of learned Senior Counsel of Respondent Nos.1, 2 6 and 7 7. Learned senior counsel for respondent Nos.1, 2, 6 and 7 submits that the present appellant has challenged the order dated 31.01.2020, which is not a decree as defined under Section 2(2) of the Code of Civil Procedure, and hence, First Appeal filed by the appellant under Section 96 of the Code of Civil Procedure is not maintainable and is required to be dismissed. 7.1 Pursuant to the order dated 31.01.2020, the captioned suit is disposed off on the ground of non – production of evidence. Pursuant to the order dated 16.01.2019 below Exhibit – 5 in Special Civil Suit No. 203/2017, the learned 6th Additional Senior Civil Judge, Surat dismissed the application below Exhibit – 5 and directed the parties to produce whole evidence within three months from the date of the order and in failure to do so, adverse inference was to be drawn against the defaulting person. The appellant preferred an Appeal from Order being Appeal from Order No. 41 of 2019, whereby this Hon’ble Court passed an order dated 14.02.2019 admitting the said Appeal from Order. 7.2 Learned trial Court asked the parties to produce evidence on multiple occasions to proceed with the suit. However, the appellant on several occasions for one or other reasons requested the learned trial Court for adjournments and did not produce evidence. The learned Trial Court has framed issues on 16.01.2019. 203/2017 6th ADDL. SR. CIVIL JUDGE & A.C.J.M. 30-09-2019 21-10-2019 PLAINTIFF EVIDENCE 203/2017 6th ADDL. SR. CIVIL JUDGE & A.C.J.M. 21-10-2019 15-11-2019 PLAINTIFF EVIDENCE 203/2017 3rd ADDL. SR. CIVIL JUDGE & A.C.J.M. 15-11-2019 03-12-2019 PLAINTIFF EVIDENCE 203/2017 3rd ADDL. SR. CIVIL JUDGE & A.C.J.M. 03-12-2019 30-12-2019 PLAINTIFF EVIDENCE 203/2017 3rd ADDL. SR. CIVIL JUDGE & A.C.J.M. 30-12-2019 10-01-2020 PLAINTIFF EVIDENCE 203/2017 3rd ADDL. SR. CIVIL JUDGE & A.C.J.M. 10-01-2020 21-01-2020 PLAINTIFF EVIDENCE 203/2017 3rd ADDL. SR. CIVIL JUDGE & A.C.J.M. 21-01-2020 30-01-2020 PLAINTIFF EVIDENCE 203/2017 3rd ADDL. SR. CIVIL JUDGE & A.C.J.M. 30-01-2020 31-01-2020 PLAINTIFF EVIDENCE 203/2017 3rd ADDL. SR. CIVIL JUDGE & A.C.J.M. 03-12-2019 30-12-2019 PLAINTIFF EVIDENCE 203/2017 3rd ADDL. SR. CIVIL JUDGE & A.C.J.M. 30-12-2019 10-01-2020 PLAINTIFF EVIDENCE 203/2017 3rd ADDL. SR. CIVIL JUDGE & A.C.J.M. 10-01-2020 21-01-2020 PLAINTIFF EVIDENCE 203/2017 3rd ADDL. SR. CIVIL JUDGE & A.C.J.M. 21-01-2020 30-01-2020 PLAINTIFF EVIDENCE 203/2017 3rd ADDL. SR. CIVIL JUDGE & A.C.J.M. 30-01-2020 31-01-2020 PLAINTIFF EVIDENCE 203/2017 3rd ADDL. SR. CIVIL JUDGE & A.C.J.M. 31-01- 2020 Disposed 7.4 Thus, the matter was listed on nine occasions for production of evidence. However, the appellant instead of producing the evidence adopted all the techniques to prolong the matter. 7.5 Instead of producing evidence, the appellant filed an application below Exhibit 50 seeking direction against the Original Defendant demarcating vacate area and submit a map showing the same before the learned trial Court in accordance with the direction passed by this Hon’ble Court in Appeal from Order. There was no specific direction passed in Appeal from Order hence, the said application was rejected. 7.6 After rejection of the said application below Exhibit 50, the appellant with an intention to prolong the matter sought adjournment for challenging the order passed by the learned trial Court rejecting application below Exhibit 50; however, the learned trial Court asked the appellant to produce evidence. The appellant failed to furnish sufficient cause for non – production of evidence even after a year. Therefore, the learned trial Court drew an adverse inference for non – production of documents. 7.7 The reliance is placed on Sections 2(2), 2(9), 2(14) and Section 96(1), Order 20 Rule 5, 6 and 6A of the Code of Civil Procedure, 1908 which are reproduced hereinunder:- “2(2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within [***] section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from order, or (b) any order of dismissal for default…” Section 2(9) of the Code of Civil Procedure, which defines, “Judgment” as under: Section 2(9) of the Code of Civil Procedure, which defines, “Judgment” as under: (9) “judgment” means the statement given by the Judge on the grounds of a decree or order; Section 2(14) of the Code of Civil Procedure, which defines “Order” as under: “…(14) “order” means the formal expression of any decision of a Civil Court which is not a decree…” “Section …96. Appeal from original decree, - (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. 5. Court to state its decision on each issue.- In Suits in which issues have been framed, the court shall state its finding or decision, with the reasons there for, upon each separate issues, unless the finding upon any one or more of the issues is sufficient for the decision of the Suit. “…6. Contents of decree – (1) The decree shall agree with the judgment; it shall contain the number of the suit, the names and descriptions of the parties, their registered addresses, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit. 6 – A. Preparation of decree – (1) Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible and, in any case, within fifteen days from the date on which the judgment is pronounced. (2) An appeal may be preferred against the decree without filing a copy of the decree and in such a case the copy made available to the party by the Court shall for the purposes of rule 1 of Order XLI be treated as decree. (2) An appeal may be preferred against the decree without filing a copy of the decree and in such a case the copy made available to the party by the Court shall for the purposes of rule 1 of Order XLI be treated as decree. But as soon as the decree is drawn, the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose…” 7.8 The impugned order passed by the trial Court is an order dismissing the suit for default of the appellant for not producing any evidence. Upon perusal of Section 2(2) of the Code of Civil Procedure, the legislature has clearly provided that any order passed for dismiss for default, does not fall under the ambit of the definition of decree, and therefore, also considering the fact that under Section 96(1) of the Code of Civil Procedure, an appeal will lie only against a decree passed by any court exercising original jurisdiction. 7.9 The respondents raised a preliminary objection qua non – maintainability of the present Appeal as the Appeal is not filed challenging the original decree. After hearing the parties, this Hon’ble Court vide order dated 28.06.2023, granted time to the appellant to place on record the decree passed by the Learned Court below while rejecting the suit. 7.10 The appellant preferred an application under Order 17 Rule 3 before the learned 3rd Additional Senior Civil Judge, Surat being Civil Misc. Application No. 171 of 2023, requesting the learned Court to draw a decree. The learned Court below vide its order dated 21.10.2023 rejected the application filed by the appellant under Order 17 Rule 3, by observing that any suit disposed off for default of plaintiff need not draw decree, as the matter is not disposed off on merits. 7.11 Learned senior counsel has placed reliance upon the decision in the case of S. Satnam Singh versus Surender Kaur; 2009 (2) SCC 562 and in the case of Nazir Ahmeda Geni and Anrs. Vs. Mohama Geni and Ors. decided by the Hon’ble Jammu and Kashmir High Court has laid down the test on when an order passed by a court is a decree. Vs. Mohama Geni and Ors. decided by the Hon’ble Jammu and Kashmir High Court has laid down the test on when an order passed by a court is a decree. 7.12 Learned senior counsel for the respondents submits that in absence of decree, First Appeal under Section 96 of Code of Civil Procedure, is not maintainable, and the present First Appeal, may be dismissed on the very ground. Submissions of learned advocate for Respondent Nos. 3, 4 and 5. 8. Learned advocate for respondent Nos.3, 4 and 5 submits that the First Appeal below Exhibits 1, 50 and 51, is not a decree within the meaning of Section 2(2) of the Code of Civil Procedure, 1908 and therefore, the present appeal under Section 96 of the Code, is not maintainable. It is submitted that unless Court decides rights and the controversy between the parties by considering evidence, impugned order cannot be termed as decree. 9. I have heard learned advocates for the respective parties and gone through the materials available on record. The learned 6th Additional Senior Civil Judge, Surat while dismissing the Special Suit No.203 of 2017 has observed that though the sufficient opportunity is given to the appellant-original plaintiff, the plaintiff did not produce any evidence and sought adjournments after adjournments. 10. At this stage, whether the Order impugned is a decree or not can be answered by referring certain provisions of Code of Civil Procedure. The definition of decree has been defined in Section 2 of Sub-section 2 of the Code of Civil Procedure, 1908 which clearly suggests that there has to be an adjudication of the dispute and there has to be a conclusive determination of the rights of the parties with regard to the controversy in the suit. The decree may be preliminary or final however, an order of dismissal of default shall not be termed as a decree. 11. The judgment is defined in Section 2(a) of the Code of Civil Procedure, 1908. A statement given by the Judge on the ground of the decree or order is a Judgment. Order means formal expression of any decision which is not a decree, is defined in Section 2(14) of the Code of Civil Procedure, 1908. 12. Order IX refers the appearance of parties and consequences of non-appearance. A statement given by the Judge on the ground of the decree or order is a Judgment. Order means formal expression of any decision which is not a decree, is defined in Section 2(14) of the Code of Civil Procedure, 1908. 12. Order IX refers the appearance of parties and consequences of non-appearance. The reliance which has been placed by the learned senior counsel for the appellant that under order IX Rule 6(1)(a) gives a power to the Court that when the plaintiff appears and defendant does not appear when the suit is called on hearing then, when the summons is duly served, the Court may make an order to hear the suit ex parte. 13. Order IX Rule 8 refers to the situation where the defendant appears and plaintiff does not appear. In such eventuality, the Court has two options, first, the Court shall dismiss the suit unless the defendant admits the claim and the Court shall pass a decree against the defendant upon such admission and shall dismiss the suit so far as reminder of the non-admitted claim by the defendant. 14. Thus, the Court has power under Order IX Rule 8 to dismiss the suit if the plaintiff does not appear when the suit is called on hearing in absence of any admission by the defendant. When the Court has exercised power under Order IX Rule 8, the remedy available to the plaintiff is laid down under under Order IX Rule 9. Order IX Rule 9 is reproduced hereinunder:- ‘9. Decree against plaintiff by default bars fresh suit.- (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party. 15. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party. 15. Thus, the restriction is cast upon the plaintiff from filing a fresh suit in respect of the same cause of action but at the same time, the remedy is also prescribed to such plaintiff, to apply for an order to set the dismissal aside upon satisfaction of a sufficient cause/s for non-appearance when the suit is called on for hearing, the Court has discretion to restore the suit upon such terms as the Court things fit. 16. The procedure of the trial of the suit can also be gathered from referring Order XVII Rule 2 and 3 of the Code of Civil Procedure. Rule 2 of Order XVII lays down the procedure when on the adjourned date parties or any of them fails to appear, the Court has power to proceed to dispose of the suit as mandated under Order IX or make such other order as things fit. However, the explanation to the above Rule is that if the evidence or substantial portion of the evidence of any party has been recorded and such party fails to appear on the day of hearing, the Court has a discretionary power to proceed with the case presuming that the party were present. 17 Rule 3 of Order XVII prescribes a procedure regarding a party, who has been granted time to produce evidence and fails to produce such evidence or fails to perform any other act necessary for the progress of the suit. In such eventuality, the Court has two options, first if the parties are present, the Court proceeds to decide the suit forthwith or if the parties or any of them is absent to proceed under Rule 2. 18. In the second eventuality, the Court has to rely upon the provisions of Rule 2 of Order XVII, wherein the Court has to consider whether evidence or substantial portion of the evidence of the parties have been recorded or not, or in event of substantial evidence being recorded, shall proceed with the case. 18. In the second eventuality, the Court has to rely upon the provisions of Rule 2 of Order XVII, wherein the Court has to consider whether evidence or substantial portion of the evidence of the parties have been recorded or not, or in event of substantial evidence being recorded, shall proceed with the case. But if the Court finds that there is no evidence though the party was granted time to produce the evidence and has failed to lead either documents or oral evidence, the Court has a discretion to adopt the modes directed under Order IX of the Code of Civil Procedure, 1908. 19. In the present case, it is an admitted position on record that the plaintiff was given number of opportunity to produce the evidence and number of adjournments to permit the plaintiff to proceed with the trial of the suit; however the plaintiff neither produced documents nor led any oral evidence to substantiate the case put forth in the plaint. Thus, again the position is clear that there is no evidence available for the learned trial Court whereby the Court can exercise the discretion by applying the explanation to Rule 2 of Order XVII. The learned trial Court, therefore, adopted the mode prescribed in Order XVII Rule 3(b) and thereby resorted to the provisions of Order IX Rule 8 of the Code of Civil Procedure and dismissed the suit. 20. For adjudicating the issue/s, the parties must adduce oral as well as documentary evidences and have to prove the documents as per the provisions contained in the Indian Evidence Act, mere averments made in the plaint or Written Statement is no proof. And on mere averments made in the plaint, Court could not opine on merits. 21. In the Code wherever the word absence of a party, is used, the intention of the legislature is not only mere physical presence of the party in the Court without any participation in the proceedings. Even if a party is represented by an Advocate, does not constitute appearance of a party. The party said to have failed to appear, even if physically present in the Court and does not lead any evidence and seeks adjournments after adjournments and tries to stall the proceedings. It would amount to absence of such party. In such eventuality, the Court is not powerless and cannot just adjourn the trial simplicitor. The party said to have failed to appear, even if physically present in the Court and does not lead any evidence and seeks adjournments after adjournments and tries to stall the proceedings. It would amount to absence of such party. In such eventuality, the Court is not powerless and cannot just adjourn the trial simplicitor. The Court has every power to dismiss the suit of the plaintiff by resorting to Order XVII Rule 3(b) of the Code of Civil Procedure and the Court shall proceed under Rule 2 of Order XVII of the Code of Civil Procedure. And eventually dismiss the suit under the provisions under Order IX Rule 8 of the Code of Civil Procedure. Whenever, the Court exercises its power under Order-IX Rule 8 of the Code of Civil Procedure, the plaintiff has a remedy by resorting the provisions contained under Order- IX Rule 9 of the Code. 22. The proper adjudication of dispute can only be said when the Court has taken into consideration not only the averments made in the plaint and Written Statement but the documents and oral evidences. 23. Upon proper adjudication of the disputes, final judgment is pronouncement by the Court and upon such pronouncement of the judgment, decree is being drawn which can be carried it into an appeal. 24. In the present case on hand, the Court had no occasion to either deal with or to consider the documentary evidence and the oral evidence of the parties since there was no evidence on record. 25. In the present case, the explanation under Order XVII Rule 2 of the Code, is not applicable since the plaintiffs have not produced any evidence. There was no evidence on record available whereby the Court can proceed with the case and decide the suit on merits. 26. Section 96(1) clearly points out that an appeal shall lie from every decree passed by Court. So the condition precedent is drawing of a decree in the case of invoking provisions under Section 96(1) of the Code of Civil Procedure. 27. Section 2(2) of the Code of Civil Procedure defines decree and it clearly envisages that for a decree there has to be a formal expression of an adjudication and conclusiveness and determination of the rights of the parties with regard to the matter in controversy. The Order of dismissal of default does not mean to be a decree. 27. Section 2(2) of the Code of Civil Procedure defines decree and it clearly envisages that for a decree there has to be a formal expression of an adjudication and conclusiveness and determination of the rights of the parties with regard to the matter in controversy. The Order of dismissal of default does not mean to be a decree. The judgment means a statement given by a Judge upon the controversy existed between the parties. The position in the present case is clear that there is no adjudication or determination of the rights or of the controversy of the parties. For pronouncement of judgment there has to be a finding of fact on all the issues. 28. The submission of automatic single line judgment canvassed by the learned senior counsel for the appellant has no force since if such an practice is adopted by the Courts below it would lead to chaos and would lead the provisions of Indian Evidence Act redundant. This court has also taken into consideration that an application to draw a decree under the provisions of Order XVII Rule 3 also came to be rejected by 3rd Additional Senior Civil Judge, Surat vide order dated 21.10.2023 by observing that the suit was disposed of for default of plaintiff and the suit has not disposed of on the merit hence, decree cannot be drawn. Against such order, the present appellant has preferred Special Civil Application before this Court, which is pending for Admission as on today. 29. The decisions relied upon by the learned Senior Counsel for the appellant, are not applicable to the peculiar facts of this case. 30. In the case of S.Satnam Singh (supra), relevant paragraphs are reproduced hereinunder: “…14. A ‘decree’ is defined in Sec. 2(2) of the Code of Civil Procedure to mean the formal expression of an adjudication which, so far as regards, the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. It may either be preliminary or final. It may partly be preliminary and partly be final. The court with a view to determine whether an order passed by it is a decree or not must take into consideration the pleadings of the parties and the proceedings leading up to the passing of an order. It may either be preliminary or final. It may partly be preliminary and partly be final. The court with a view to determine whether an order passed by it is a decree or not must take into consideration the pleadings of the parties and the proceedings leading up to the passing of an order. The circumstances under which an order had been made would also be relevant. 15. For determining the question as to whether an order passed by a court is a decree or not, it must satisfy the following tests: (i) There must be an adjudication; (ii) Such adjudication must have been given in a suit; (iii) It must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit; (iv) Such determination must be of a conclusive nature; and (v) There must be a formal expression of such adjudication…” 31. In the case of Nazir Ahmad Ganie ( supra), the Hon’ble Jammu and Kashmir High Court, has held as under:- “…Section 96 (1) CPC provides that the person aggrieved of the decree passed by the civil court exercising original jurisdiction can file an appeal. Section 96 (2) states that an appeal may lie from an original decree passed ex-parte. Section 96 (3) states that no appeal shall lie from a decree passed by the court with the consent of parties. Section 96 (4) speaks of the appeal against a decree passed by the Courts of Small Causes lie only when the amount or value of the subject matter of the original suit does not exceed Rs.10,000/-. All sub-sections of Section 96 embrace of word “decree” passed by court in exercise of original jurisdiction. 5. Order 20 Rule 6 (A) CPC provides that an appeal may be preferred against the decree without filing a copy of the decree and in such a case the copy made available to the party by the court shall for the purposes of Rule 1 of Order 41 be treated as the decree. However, a caveat is attached to this provision in sub-rule (2) of Rule 6 (A) as the said clause. Clearly mentions that as soon as the decree is drawn the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose. 6. However, a caveat is attached to this provision in sub-rule (2) of Rule 6 (A) as the said clause. Clearly mentions that as soon as the decree is drawn the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose. 6. It may be noted herein that prior to the year 2009 as obtained in the Civil Procedure Code applicable to the State of Jammu and Kashmir the words “Judgment” in Section 96 CPC was conspicuous by its absence meaning thereby that the decree sheet was required to be annexed with the appeal. 7. The provisions stated above amply make out that the appellant is required to challenge the decree and not the judgment passed by the court of original jurisdiction. The legislature has purposely mentioned the word “decree” which is required to be challenged in the appeal and not the judgment. The appellant if waits for a long seven years to challenge the decree by just filing an application for amendment that cannot be allowed. It would be an easy way to defeat the provisions of law which are mandatory in nature. Infact no appeal can be said to have been filed without challenging the decree passed by the court. It is not the case herein that the decree was not prepared when the appeal was preferred by the appellant before the appellate court. The argument of the learned counsel for the appellant that the first appellate court should have pointed out the deficiency of the decree of the trial court having been not challenged or that the decree sheet having not been placed on record is the argument which prima facie requires outright rejection. It is not for the court to advise the appellant to make necessary incorporation in the appeal…” 32. In the present case, it is not a rejection of plaint but it is the dismissal of the suit by invoking the provisions of Order-IX Rule 8 of Code of Civil Procedure, 1908. 33. The learned trial Court had no occasion to deal with the evidence of the parties. Thus, the order impugned is not a decree and hence, the appeal would not lie. Thus, the present Appeal fails. Order in Civil Application (For Stay) No.1 of 2020. 33. The learned trial Court had no occasion to deal with the evidence of the parties. Thus, the order impugned is not a decree and hence, the appeal would not lie. Thus, the present Appeal fails. Order in Civil Application (For Stay) No.1 of 2020. In view of the order passed in the main matter i.e. First Appeal No.1241 of 2020, the present Civil Application does not survive and stands disposed of accordingly.