J.W.F. Beaumont, C.J.
1. This is an application for revision in respect of a judgment of the First Class Subordinate Judge of Sholapur, and the case arises in this way.
2. The original suit was brought before the joint Subordinate Judge of Sholapur and it appears from his judgment, dated February 10, 1927, that the evidence in the case had been concluded and the plaintiff's advocate was then asked by the Judge the question, ' How in view of the statement of his own client the plaintiff, the marriage of Bhagawa with the deceased Shantapa could be held valid under the Hindu law'-the Judge apparently suggesting that the marriage might be invalid under the Hindu law-and the pleader asked for time to enable him to consider the question. The case was accordingly adjourned to the following Wednesday; on Wednesday neither the plaintiff nor his pleader was present and the case was them adjourned to Thursday. Again, on Thursday neither the plaintiff nor his pleader was present, a search was made for the pleader but apparently he was not in the precincts of the Court, and thereupon the learned Judge made this order, ' Suit dismissed with costs for default of appearance'.
3. From that order the plaintiff appealed 10 the First Class Subordinate Judge, who dismissed the appeal on the ground that the plaintiff ought to have applied under Rule 9 of Order IX to the trial Judge to set aside the order dismissing for default of appearance, and it is in respect of the latter order that the present application is made.
4. Now the rules relating to dismissing actions for default of appearance are not very easy to reconcile. There is, in the first place, Order IX, Rule 8, which provides:
Where the defendant appears and the plaintill1 does not uppoiu1 when the suit is called on for hearing, the Court shall make an order Unit the suit be dismissed, unless the defendant admits the claim, or 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';
and then Rule 9 provides:
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.
5. In my opinion that Order applies in respect of the first hearing, but when you come to subsequent hearings, I think the Order which has to be looked at is Order XVII. That Order provides in Rule 1, that the Court may, if sufficient cause is shown, at any stage of the suit, grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit.
6. Then, Rule 2 provides :-
Where, on any day to which the heaving of the suit is adjourned, the parties 01- 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' ;
so that that rule clearly extends the operation of Rules 8 and 9 of Order IX to any adjournment which takes place in the course of the hearing of the suit, on which adjournment there is a failure of appearance.
7. Then, Rule 3 provides :--
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.
8. Now it seems clear that this particular case falls within the words of Rule 3, because time was granted either to produce evidence or to perform another act necessary to the further progress of the suit, namely, produce ground showing that the particular marriage in question was a valid marriage. I think, therefore, that the Judge clearly had power under Rule 3 to decide the suit and as the evidence had been closed, he would have had no difficulty in so doing, I am bound to say that, I think, the words of Rule 2 are also wide enough to include this case. I do not think it is very easy to say exactly what the distinction between Rules 2 and 8 is. The High Court in Allahabad, in Ganeshi Lal, Ear Narain v. Debi Das ILR (1924) All. 140 and Ram Adhin v. Ram Bharose ILR (1924) All. 181, seems to treat Rule 2 as applying to the case of an adjournment where on the adjourned hearing the parties or their pleaders do not appear, and Rule 3 as applying to a case of an adjournment, where the parties or their pleaders do appear. But I do not think that the distinction between the rules can depend on the fact of whether the pleader or counsel happens to be in Court at the moment when the adjourned case is called on. It may be that Rule 3 only applies to cases where an adjournment has been granted at the instance of one of the parties and Rule 2 applies to an adjournment at the instance of the Court, or it may be that a case can fall either under Rule 2 or Rule 3, and the Court has a discretion, according to the circumstances, under which of the two rules it will act.
9. Even on the latter hypothesis, I think that this case is one in which the Judge ought to have acted under Rule 3, because the whole of the evidence had been closed, the arguments had been in the main finished, there was only one point open, and the learned Judge could, therefore, have dealt with the case on the merits. I think authority for saying that that was the right course is to be found in the case referred to by Mr. Mulgaonkar of Ningappa v. Gowdappa (1905) 7 Bom, L.R. 261.
10. In my view, therefore, the learned Judge ought to have decided this case on the merits, and I think notwithstanding a certain amount of delay, we ought not to penalize the plaintiff for the error of his pleader in the trial Court and that we should refer this case back to the trial Judge to decide the case on the merits. Inasmuch as the trouble has been occasioned by the fact that the plaintiff's pleader was not present in Court, the plaintiff should pay the defendant's costs in the lower appellate Court and in this Court. The costs of the proceedings before the trial Judge to abide the event.
11. As observed in Ratanbai v. Shankar Deochand ILR (1922) 46 Bom. 1026 : 24 Bom. L.R. 775, some difficulties are occasioned by the peculiar wording of Rules 2 and 3 of Order XVII On the whole, reading that Order along with Order IX, Order IX applies to the first hearing, Order XVII to subsequent hearings. At these subsequent hearings Rule 2 of Order XVII gives the same powers to the Court, when the parties fail to appear,, as Order IX does at the first hearing. Rule 2, therefore, is general. Rule 3 is more particular. It rather deals with adjournments granted to a party and on default of attendance by that party empowers the Court to decide the suit forthwith. Whenever a suit is dismissed, the Court should, in my opinion, invariably state the precise order and rule under which it purports to dismiss it. The learned Joint Subordinate Judge in the present case did not do so, The evidence was complete except for a point which occurred to him after the arguments were concluded. The mere failure of the plaintiff s pleader to attend and answer a question at any of the adjourned hearings might perhaps under Rule 2 enable the Court to dismiss the suit for default, but in the circumstances there can be no question that that was not the proper course contemplated. It was rather the course laid down in Rule 3 and on the distinctions between these rules different views have been taken as for instance, in Basayya v. Allayya (1925) 27 Bom. L.R. 477 and Phul Kunr v. Hashmatullah Khan ILR (1915) All. 460. In this view, the learned Subordinate Judge did not expressly purport to make the order under Rule 2. The plaintiff had at least some justification of filing an appeal and not for an application under Rule 9, Order IX, to set aside the order of dismissal. There was no unreasonable delay in filing the present application after the decision of the appeal against him.
12. In these circumstances, I am unable to agree that there is any bar of limitation to the present application. On the merits, for the reasons stated above, I agree with the order proposed by my Lord the Chief Justice.