John Beaumont, Kt., C.J.
1. This is an appeal against a decree passed by the First Class Subordinate Judge of Bijapur. The plaintiff sued for a sum of approximately Rs. 11,000. The defendants admitted that a sum of Rs. 5,976 and certain interest was due.
2. At the first hearing the Court framed issues under Order XV, Rule 3, Sub-rule (1), of the Civil Procedure Code, and then adjourned the further hearing, under Sub-rule (2), to February 15, 1939. On that date the plaintiff alleged through his pleader that he was ill, and asked for an adjournment. The adjournment was refused, and the pleader thereupon withdrew, saying that he had no instructions to proceed. The learned Judge then dealt with the case on merits and answered the issues. He came to the conclusion that the defendants proved that only the amount admitted by them was due; in effect, therefore, he rejected the balance of the plaintiff's claim, and passed a decree against the defendants for the amount admitted to be due, and directed payment by certain instalments.
3. The plaintiff contends on this appeal that the order ought to have been made under Order IX, Rule 8, decreeing the amount of the claim admitted by the defendants, but dismissing the balance of the claim for want of appearance. An order in that form would entitle the plaintiff to apply to get the dismissal set aside under Order IX, Rule 9.
4. Mr. Jathar for the respondents contends that in effect the order is one decreeing part of the claim and dismissing the rest for want of appearance; and that there is no substance in the appeal; but I do not think that that contention can be supported. In my opinion the case was dealt with on merits, and the balance of the plaintiff's claim was dismissed on merits. If that is so, plaintiff can only appeal on merits, and he has no evidence.
5. It is then argued that the course was justified under Order XVII, Rule 2, or Rule 3 Order XVII deals with adjournments, and Rule 2 provides 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 IX or make such other order as it thinks fit. This was an adjourned hearing, and, therefore, that rule applied, and the learned Judge could either have disposed of the matter by making an order under Order IX, Rule 8, or by making such other order as he thought fit. Now, it is clear that those last words of the rule confer a discretion, but it is a discretion which must be exercised judicially. A Judge, in exercising such discretion, may grant a further adjournment, or, if the circumstances, justify such a course, I think that he can pass an order on merits, but he must have material before him to justify that course. If there is no evidence before him, he cannot in the exercise of judicial discretion proceed to deal with the case on merits. In this case he had no material enabling him to do so, since there was no evidence as to the balance of the plaintiff's claim. Therefore, the learned Judge was bound, either to dispose of the matter under Order IX, or else to grant an adjournment. It was not, in my opinion, open to him on the material before him to dispose of the case on merits.
6. Then Order XVII, Rule 3, is relied on. The difference in phraseology between, Rule 2 and Rule 3 has been discussed on a good many occasions by this Court and other High Courts. Rule 3 is not in terms confined to default of appearance as is Rule 2, though Rule 3 may be brought into operation by default of appearance. Rule 3 provides that 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, proceed to decide the suit forthwith. That rule is directed to the failure by one of the parties to do an act for which he has been allowed time, and on that failure the Court may proceed to decide the suit forthwith. But even under Rule 3 the Court must have material to enable it to exercise its proper discretion by deciding the case on merits. In this particular case I do not think that Rule 3 applied. The hearing of the suit had been adjourned under Order XV, Rule 3, for the production of evidence by the parties, and I do not think a general adjournment of that kind can be said to be an order bringing into operation Order XVII, Rule 3. Even if the rule did apply, there was no material for deciding the case on merits. In my view this case fell within Rule 2 only, and the learned Judge had no material before him to justify him in disposing of the plaintiff's case on merits by dismissing that part of the claim which was not admitted.
7. I think, therefore, that the appeal must be allowed, and the order of the lower Court must be varied by adding thereto the words: ' And the balance of the plaintiff's claim is dismissed for want of appearance.' No order as to costs.
8. I agree.