Skip to content


Rama Rao and ors. Vs. Shantibai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 975 of 1973
Judge
Reported inAIR1977MP222; 1978MPLJ20
ActsCode of Civil Procedure (CPC) , 1908 - Order 9 - Order 17, Rules 2 and 3
AppellantRama Rao and ors.
RespondentShantibai and ors.
Appellant AdvocateP.R. Padhye, Adv.
Respondent AdvocateN.S. Kale and ;M.L. Jaiswal, Advs. for Non-applicant No. 1
Cases ReferredMadanlal v. Jai Narayan
Excerpt:
- - --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. the real controversy before us at the hearing based on conflicting views of different high courtson the point is whether rule 3 applies to a situation where 'the parties or any of them fail to appear' or it is rule 2 alone which would apply on account of the default in appearance. on a plain construction of rule 2, it is clear that if 'the parties or any of them fail to appear' on such a date, rule 2 is attracted which empowers the court 'to dispose of the suit' in one of the.....dwivedi and verma, jj.1. the several questions referred for decision to this bench require substantially answers to two questions, namely,-- (i) the comparative scope of rules 2 and 3 of order 17 of the code of civil procedure, and (ii) the meaning of word 'appear' occurring in rule 2, order 17, c.p.c, to constitute appearance of a party at the hearing. the answers to these questions would provide in turn the answers to the several questions referred to us for decision. for this reason we shall proceed to first consider the two main questions already stated. this reference to a larger bench is apparently made by my lord the chief justice on account of the fact that a recent decision in shantabai v. chokhe-lal, 1975 mplj 832 : (air 1976 madh pra 21) (fb) by a bench of three learned judges.....
Judgment:

Dwivedi and Verma, JJ.

1. The several questions referred for decision to this Bench require substantially answers to two questions, namely,--

(i) the comparative scope of Rules 2 and 3 of Order 17 of the Code of Civil Procedure, and

(ii) the meaning of word 'appear' occurring in Rule 2, Order 17, C.P.C, to constitute appearance of a party at the hearing.

The answers to these questions would provide in turn the answers to the several questions referred to us for decision. For this reason we shall proceed to first consider the two main questions already stated. This reference to a larger Bench is apparently made by my Lord the Chief Justice on account of the fact that a recent decision in Shantabai v. Chokhe-lal, 1975 MPLJ 832 : (AIR 1976 Madh Pra 21) (FB) by a Bench of three learned Judges takes the view that Rule 3 of Order 17 applies even in the absence of parties when ever since the year 1930, the authoritative view of this Court was to the contrary and the questions involved are of frequent occurrence in the subordinate Courts.

2. The first question is with regard to the comparative scope of Rules 2 and 3 of Order 17 which read as under:--

'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.

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 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.' (Underlining by us). The importance of this question lies in the fact that the remedies available against the order depend on whether it is made under Rule 2 or Rule 3. There is not controversy that Rule 3 is comparatively a more stringent provision so that it must be construed strictly with a view to avoid enlargement of its scope beyond the limits fixed by the language used therein. In other words, the construction of these provisions should be such that where it is permissible to treat an order as falling within the ambit of Rule 2, it must be taken as being outside the ambit of Rule 3 for the obvious reason that Rule 3 is a more stringent provision requiring a strict construction. The real controversy before us at the hearing based on conflicting views of different High Courtson the point is whether Rule 3 applies to a situation where 'the parties or any of them fail to appear' or it is Rule 2 alone which would apply on account of the default in appearance. In our opinion, this is the crux of the matter providing answer to the first main question required to be decided by us.

3. Order 17 relates to adjournments at the stage of hearing of suit. Rule 1 empowers the Court to adjourn the hearing of the suit if sufficient cause is shown to its satisfaction. Rules 2 and 3 both apply to an adjourned date of hearing of the suit. To this extent, there is no difference in the two Rules and this is, in fact, the starting point for attracting either of these Rules. The real trouble arises as a result of what transpires in the Court on the adjorned date of hearing. On a plain construction of Rule 2, it is clear that if 'the parties or any of them fail to appear' on such a date, Rule 2 is attracted which empowers the Court 'to dispose of the suit' in one of the modes specified. The modes available for disposal of the suit in such a situation are those provided in Order 9, C.P.C. or by making 'such other order as it thinks fit'. It is settled that Order 9 provides for all situations arising out of the non-appearance of all or any of the parties to the suit so that the Court has the option to adopt any of the modes provided in Order 9 which is applicable to the situation created by the default in appearance of all or any of the parties. Moreover, the further expression 'or to make such other order as it thinks fit' does empower the Court to dispose of the suit in a mode other than that provided in Order 9. Such other order permitted by Rule 2 ought to be of the kind not expressly specified, e.g., an order of adjournment. Jt is not difficult to visualise a situation where the parties or any of them fail to appear in the Court on such a date and on the basis of the facts obvious to the Court, it has reason to assume that there was a fair possibility of the defaulting party being absent on account of reasons beyond its control which require that the party should not be penalised in any manner even by disposal of the suit in the mode available under Order 9, A situation such as that created by a natural calamity on that date provides an obvious illustration of this kind. Thus, the unambiguous and clear words used in Rule 2 show that Rule 2 applies to an adjourned date of hearing where the parties or any of them fail toappear. There is no other requirement for attracting Rule 2. The remaining part of Rule 2 deals only with the manner in which the Court is empowered to dispose of the suit in the situation resulting from the default in appearance of all or any of the parties to the suit and the latter part of the Rule contains no requirement to be fulfilled for attracting Rule 2.

4. The scope of Rule 2 being as already stated, it must follow necessarily that the scope of Rule 3, Order 17 which follows immediately thereafter cannot be such as to include within its ambit that which falls within Rule 2 unless the express language of Rule 3 leads to that inevitable result. This follows from the need of strict construction of Rule 3 for the reason already stated in addition to the fact that two provisions, one following the other, in this manner would not be enacted to provide for the same situation. Moreover, the use of some words in Rule 2 and then their omission in Rule 3 must be taken as a deliberate act of the Legislature to indicate its intention of not including within the ambit of Rule 3 that which falls within the purview of the words omitted therefrom even though incorporated in the preceding Rule 2. In our opinion, all these factors are undoubtedly relevant for determining the comparative scope of Rule 3.

5. In Rule 3 we find that the expression 'the parties or any of them fail to appear' does not find place which medns that these words were deliberately omitted by the Legislature while enacting Rule 3 so as to exclude from within its ambit cases of default in appearance of parties or any of them for which provision was already made in Rule 2. In our opinion, the insertion of the words 'the parties or any of them fail to appear' in Rule 2 and their omission in Rule 3 was a deliberate act of the Legislature intended to indicate the real point of distinction between these two Rules; Rule 2 being enacted to provide for all cases where the parties or any of them fail to appear while Rule 3 being made obviously for cases where there was no default in appearance of any of the parties but any party at whose instance hearing of the suit had been adjourned earlier fails to perform the act necessary for further progress of the suit. It is for this reason that Rule 3 empowers the Court to decide the suit forthwith while Rule 2 speaks of disposal of the suit in one of the modesspecified. The use of the words 'dispose of the suit' in Rule 2 as against the words 'decide the suit' in Rule 3 is obviously another deliberate act of departure in view of the obvious difference between these two expressions. Decision of the suit has necessarily to be on merits bringing about its termination in that Court whereas disposal of the suit may be even by a mode which need not necessarily end the suit, e.g., by an adjournment to another day. In the context, the meaning of 'dispose of' must be different from 'decide'.

6. In our opinion, the construction confining application of Rule 3 only tocases where there is no default in appearance of any of the parties is also more reasonable. Where there is no default in appearance, the party at whose instance and for whose benefit adjournment was granted at the previous hearing being present has the opportunity to assign the reason for its failure to perform the act necessary to the further progress of the suit with the result that the Court, if satisfied, need not proceed to decide the suit forthwith in spite of Rule 3 being attracted and it may grant a further adjournment. On the other hand, the reason for the party's failure to perform the necessary act being assigned, if the Court is not satisfied with the sume and proceeds to decide the suit forthwith, the material being already present on record, the aggrieved party can assail the correctness and propriety of the Court's action in deciding the suit forthwith, in appeal against that decision. The appellate Court will have the necessary material and the trial Court's finding thereon in the record to enable it to decide the question afresh in appeal. However, if Rule 3 be construed to include within its ambit even eases of default in appearance, notwithstanding the contrary indication given by the language used, then the defaulting party will have to be given an opporunity for the first time by the appellate Court to show that its default can be condoned for valid reasons. This is the course suggested in some of the decisions referred by us hereafter which take the view that Rule 3 applies even to cases of default in appearance because it is conceded that an opportunity should be given to the defaulting party to satisfy the Court that its default was for valid reasons. At the hearing before us it was conceded that there is no express provision in the Code permittingthe appellate Court to adopt such a procedure but it was suggested that this can be done by the appellate Court in exercise of its inherent powers.

7. The result of taking the oppositeview is, therefore, to unduly stretch the powers of the appellate Court requiring it to adopt a procedure for which there is no sanction in the Code of Civil Procedure and this, we say with the greatest respect, is a situation created by first reading something more in Rule 3 which it does not contain and which is not even necessary in view of Rule 2 making a clear provision for those cases. For the reasons already given, the legislative intent clearly is to apply Rule 2 alone and not Rule 3 to all cases of default in appearance of the parties. When disposal of the suit is by one of the modes contained in Order 9, C.P.C., on application of Order 17, Rule 2, express remedy is provided to the defaulting party. To cases of default in appearance, Rule 3 was not intended to apply and it is for this reason that there is no express provision made in the Code empowering the appellate Court to counteract a decision made under Rule 3 in the absence of a party who can show that there was valid reason for its default in appearance on that date. In our opinion, the construction of Rule 3 so as to include within its ambit cases of default in appearance of a party and then the suggestion that the appellate Court can permit the defaulting party to show in that Court for the first time that there was valid reason to explain its default, in the absence of any express provision in the Code to permit such a course, is merely the creation first of a needless hurdle by reading something in Rule 3 which is not there and then the further attempt to overcome the same by suggesting a course not provided in the Code. We find it difficult to accept that the Legislature left such loopholes while enacting these provisions. This conclusion is reinforced by the fact that on a plain construction of Rule 2, it includes all cases of default in appearance of parties and there is a deliberate departure in phraseology while enacting Rule 3 to indicate clearly that cases of default in appearancewere not included within Rule 3.

8. If we look at the heading of Rule 2 and compare the same with that of Rule 3, it provides a further indication that Rule 2 and not Rule 3 was intended to apply to all eases of default in appearance of parties. This infe-rence is reinforced by the fact that the heading of Rule 2 is in consonance and not atvariance with the enacting part of that Rule 4 The question is; whether, such use of heading can be marie as an aid to construction? In our opinion, a limited use can be made of the heading of Rule 2 in order to lend reassurance to the conclusion already reached by us on the basis of the plain words of the enacting part of the provision. In Bhinka v. Charan Singh. AIR 1959 SC 960, the use of the heading of a provision was made for resolving a doubt and it was stated as follows:--

'Maxwell op Interpretation of Statutes, 10th Edn., gives the scope of the user of such a heading in the interpretation of a section thus, at p. 50:

'The headings prefixed to sections or sets of sections in some modern statutes are regarded as preambles to those sections. They cannot control the plain words of the statute but they may explain ambiguous words'. If there is any doubt in the interpretation the words in the section, the heading cer-tainly helps us to resolve that doubt.'

It is this limited use permitted by the Supreme Court that we make of the heading in this case to re-assure ourselves about the comparative scope of the two Rules and to clear the ambiguity, if any. The law permitting this limited use of the heading of a provision continues to be the same and the recent House of Lords' decision in Director of Public Prosecutions v. Schildkamp (1969) 3 All ER 1640 reiterates that the heading of a provision can definitely be used as an aid to construction even though its use is limited.

9. The plain and unambiguous language of the two provisions; the deliberate departure made in the phraseology of the two Rules; the undisputed need to construe Rule 3 strictly; the consequences which necessarily follow as a result of the construction made and the heading of the two Rules, are factors which lead us without any hesitation to the conclusion that Rule 2 applies to all cases of default in appearance of all or any of the parties with the result that Rule 3 does not apply to any of those cases. This conclusion also enables the defaulting party to have the order made under Order 9, C. P. C. set aside in the manner provided for that purpose in the Code by showing that there was valid reason for default in appearance on the date fixed. This is done in the manner prescribed by the Code. We also think that the expression 'such other order as it thinks fit' used in Rule 2 permits disposal of the suit and not a decision thereof on merits contemplated by Rule 3, in a mode other than that provided in Order 9, ', g., by an order of adjournment Acontrary conclusion would result in several needless difficulties. In the first place, that would permit an order of the type contemplated by Rule 3 even in the case of a default in appearance of any of the parties which is a construction not acceptable to us for the reasons already given. That apart, it would permit the making of an order contemplated by Rule 3 within the ambit of Rule 2 itself so that such a construction would render Rule 3 superfluous. It is settled that unless it is unavoidable, a construction which renders a provision superfluous must be rejected, All these reasons impel us to take the view that the expression 'or make such other order as it thinks fit' used in Rule 2 does not include within its ambit a decision falling within the ambit of Rule 3. As for Rule 3, it follows that, this Rule presupposes the presence of all par-ties and then the failure of the party at whose instance and for whose benefit the hearing was adjourned on the previous date to perform the act necessary to the further progress of the suit. It is only to this class of cases that Rule 3 applies and it has no application to cases falling within the ambit of Rule 2. In our opinion, whenever such a question arises, it has first to be seen whether Rule 2 applies to the facts of a case since on Rule 2 being attracted, the operation of Rule 3 would be automatically excluded. It is only when there is no default in appearance of all or any of the parties that the question of applying Rule 3 would arise to the facts of a case, provided the requirements laid down in Rule 3 are fulfilled.

10. We shall now refer to the several decisions on this point in order to examine whether it is necessary for us to deviate from the view indicated by us and which, in our opinion, follows from a construction of the provisions in accordance with the accepted rules. We shall first refer to the decisions of this Court on the point, in chronological order.

11. The earliest reported decision of this Court cited is Abdul Karim v. Ratilal Gujarati AIR 1930 Nag 152. The learned Judicial Commissioner expressly followed the Full Bench decision of the Madras High Court in Pichamma v. Sreeramulu ILR 41 Mad 286 : (AIR 1918 Mad 143 (2) (FB)) and held that Rules 2 and 3 of Order 17 are mutually exclusive; Rule 2 applies in all cases of absence of a party or parties, whether or not time had been granted to them to do any of the acts laid down in Rule 3 and that Rule 3 clearly contemplates the presence of the parties and only deals with the case where such party being present has failed to do any of the things laid down in Rule 3. In view of the factthat the Full Bench decision of the Madras High Court in Pichamma's case, supra, was expressly followed, it would be useful to quote the relevant passage from the majority opinion therein which occurs at page 295 and is as follows:--

'The decision of the question must depend on the express language of Order XVII, Rules 2 and 3. As pointed out in Chandramathi Ammal v. Narayanaswami Aiyar (1910) ILR 33 Mad 241, Section 157 (rule 2) deals with cases of absence of parties and Section 158 (Rule 3) with failure to do what was ordered. If the party fails to appear Section 157 (rule 2) applies and there is no reason why the Court should assume (in the absence of any explanation) that he is guilty of default so as to apply the stringent provisions of Section 158 (rule 3). I think the correct rule is to treat Rule 3 as applying only to cases where the parties are present and have not satisfied the Court as to the existance of any adequate reason for their not having done what they were directed to do. I have already dealt with the matter from the point of view of hardship to the parties and my own experience is that the rule laid down in Chandramathi Ammal v. Narayanaswami Aiyar, supra, has been a safe and uniform guide to Courts. The construction moreover is one that suggests itself on a consideration of the plain language of Rules 2 and 3 I have no hesitation in coming to the conclusion that the decision in Chandramathi Ammal v. Narayanaswami Aiyar, supra, ought to be followed.'

The learned Chief Justice who was in minority held that Rules 2 and 3 are not mutually exclusive but all the same he further held that even though Rule 3 may be applied in the absence of the defendant, yet the decree will nonetheless be ex parte and liable to be set aside under Order 9 Rule 13. C. P. C. Thus, even the minority opinion of the learned Chief Justice did hold that Order 9 Rule 13 applies to such a case which means in substance that the decree was treated as one passed under Rule 2 since Order 9 Rule 13 does not apply to a decree passed under Order 17 Rule 3. The next decision of this Court is Bhivraj v. Janardhan 30 Nag LR 94 : AIR 1933 Nag 370. Niyogi A, J. C. reiterated the same view following Abdul Karim's case, supra. Since we find ourselves in full agreement with the conclusion as well as the reasons given by Nivogi, A. J. C. in this decision, it would be useful to quote at some length from this decision. The relevant portion of the decision is as follows:--

'The material provisions of Order XVII have to be read with those of Order IX of the Civil Procedure Code. Order IX deals with theconsequences of non-appearance of parties in obedience to the summons issued by the Court for their appearance, which is the first hearing of the case, Order XVII bears on the subsequent progress of the suit and deals with the consequences arising from the default of the party consisting in the non-appearance of the parties or in failure to perform some act necessary for the progress of the suit such as the production of documentary evidence or causing the attendance of witnesses. Rule 2 specifically provides for the event of the failure of the party to appear in the course of the trial, and it gives a discretion to the Court either to dispose of his suit in one of the modes directed by Order IX or make such other order as it thinks fit. As the non-appearance of the party or parties concerned at any stage of the suit subsequent to the first hearing is analogous to the cases dealt with in Order IX, the Court has been given the power to put such cases in the category of Order IX. At the same time in view of Rule 1, Order XVII, the Court is also empowered to grant an adjournment. Rule 3 contemplates a case where the parties are present but commit default in some way which impedes the progress of the suit. It is obvious that while Rule 2 applies to cases where the hearing is adjourned for any purpose and the parties fail to appear at the adjourned hearing, Rule 3 contemplates a case where the hearing is adjourned at the instance of a party for some one or other of the purposes specified by Rule 2 and the party fails to perform the act or acts during the time allowed by the Court. But cases are bound to happen when the party fails to appear in person and also to perform the specified act or acts for which the adjournment was granted. It is in cases of this kind that the question whether R, 2 or Rule 3 of Order XVII is to be applied arises. Rule 3 presupposes the appearance of the party at whose instance the case was adjourned, but who is unable to give proper explanation of his omission to perform the specific act or acts for which the adjournment was granted at his instance. When the party is present it is possible for the Court to demand an explanation. What further action is to be taken would be determined by the nature of the explanation. If the Court is satisfied with the explanation it may adjourn the case under Order XVII, Rule 1. If it is not, then the Court may proceed to judgment on such material as there is on record on the assumption that the party has no evidence to produce or witnesses to tender. The Court is bound to pass some order to indicate its view of the explanation tendered by the party and why further adjournment wasthought unnecessary. This order is capable of being considered by the appellate Court under S! 105 (1), Civil Procedure Code, when an appeal from the decree comes to be filed. The position is different when the party is absent and there is nobody duly instructed appearing in Court able to give any explanation on behalf of the party. In such cases it is obviously inexpedient and unreasonable that the Court should at once proceed to judgment. The appropriate course would be to treat the case as falling under Rule 2 so as to give the Court a discretion either to proceed under Order IX or adjourn the case. In either case it is open to the party to appear in the Court and give a proper explanation of his default in the performance of the act necessary for the progress of the suit. If the Court proceeds to dispose of the case under Rule 3 in the absence of the party, he would have only two courses open, either to move the Court by a review petition or to prefer an appeal from the decree passed against him. As remarked by Kumaraswami, J., in Pichamma v. Sreeramulu (supra) 'There can be no review if the Judge does not preside when the application is made'. Nor can the appellate Court consider the explanation by the defaulted party for the first time in appeal from the decree, since it is not its province to make an investigation occasioned by the explanation as the original Court would be expected to do. While considering this aspect of the matter, Mukerji, J. gave an illustration which is almost identical with the facts of the present case, in these words:--

'I will take an extreme case. Say, a defendant obtained time to produce his witnesses, On the date fixed for hearing he did all he could to arrive at the Court in time, but there happened to be a railway accident and he and his witnesses were delayed. Where is he to prove the facts :

Ram Adhin v. Ram Bharose ILR 47 All 181 at p. 185 : (AIR 1925 All 182 at p. 183) His answer was: Not in the appellate Court.' 'The foregoing discussion makes it clear that the proper way of interpreting rules 2 and 3 of Order XVII would be to treat the disposal of the suit as having been made in accordance with Rule 2 in cases when on account of the non-appearance of the party, the ex--planatiou of his failure to perform the acts referred to in Rule 3 was due but was not given on account of his absence.'

Thus, the same view was reiterated in Bhivraj's case, supra. Dayalji v. Kedarnath AIR 1953 Nag 222 is relevant only for the purpose that Mudholkar, J. held thereinthat the provisions of Rule 3 of Order 17 being penal in nature ought to be construed strictly and where it was not clear whether a particular case falls under Rule 2 or under Rule 3, the Court must lean in favour of holding that the case falls under Rule 2 and not under Rule 3. Motilal Joshi v. Mohd. Shafi, AIR 1956 Nag 179 is the next decision on the point. The decision was by a Division Bench on a question referred to it for the purpose of deciding whether the case fell under Rule 2 or Rule 3 of Order 17 Civil Procedure Code. The Order of reference of Kaushalendra Rao, J. expressly relied on Bhivraj's case, supra, to hold in paras 5 and 8 that Rule 2 is attracted only when a party fails to appear while Rule 3 contemplates that the parties are present but have committed a default in some way which impedes the progress of the suit. The question referred was whether the withdrawal of defendant's counsel by reporting no instructions after refusal of the adjournment amounted to appearance of the defendant through counsel so as to take out the case from the ambit of Rule 2. The Division Bench held that it did not amount to an appearance of the defendant through counsel so that Order 17 Rule 2 applied to that case. The Division Bench was obviously of the opinion that the view of Rao, J, expressed in the Order of Reference about inapplicability of Rule 3 when a party is absent was the correct view otherwise the question referred to the Division Bench did not arise for decision. It must be held that the opinion of the Division Bench in Motilal's case, supra, reiterated the correctness of the view taken in Bhivraj's case, supra, on this point.

12. Thereafter in Kanhaiyalal v. Usma-nali, C. Revn. No. 292 of 1956 D/- 14-4-1960 : 1960 Jab LJ (N) 14 P. R. Sharma, J. appears to have struck a discordant note on this point for the first time. In para 4 of the decision, P. R. Sharma, J. stated the question for decision in that case as follows:--

'The short question which arises for consideration in the present case is whether on the appearance in Court of a duly instructed counsel on behalf of the defendants at the time of the hearing of the suit, a subsequent withdrawal from the case by the learned counsel on the ground that he had no instructions to carry on with the proceedings would amount to non-appearance of the party concerned so as to render Order 17 Rule 2 of the Code of Civil Procedure applicable.'

However, the learned Single Judge also expressed his opinion thereafter that the non-appearance of a party would not be sufficient ground for holding that the previsions of Order 17 Rule 3 would not apply to his case.

It is significant that on the question arising for decision in that case that there was no occasion for the learned Single Judge to express this further opinion because the question really was whether there being appearance made through counsel at the commencement of the hearing could appearance at that hearing be then wiped out by a subsequent withdrawal of the duly instructed counsel. It is also significant that the Division Bench decision in Motilal's case, supra, was quoted and relied on by the learned Single Judge. That being so, it is difficult to appeciate how Motilal's case (AIR 1956 Nag 179) was read as supporting the view that Rule 3 applied even to a case of absence of a party. It may be added that the earlier view of this Court to the contrary taken in the cases already referred was not even noticed by P. R. Sharma, J, For these reasons, we have no doubt that the decision of P. R. Sharma, J was given per incuriam in addition to the fact that his opinion was obiter in view of the question arising for decision in that case. It is, therefore, obvious that this decision of P. R. Sharma, J. was not of any value as a precedent. The next decision also of P. R. Sharma, J. was in Sunderlal v. Motilal, C Revn. No. 51 of 1962 D/- 15-3-1962 : 1962, Jab IJ (N) 169 (G. Bench). Once again P. R. Sharma, J. expressed the same opinion that the fact of absence of a party was not a ground for not applying the provisions of Order 17 Rule 3 C. P. C, This view was expressed by the learned Single Judge once again without any reference to the earlier decisions of this Court on the point. In our opinion, this decision too was, therefore, rendered per incuriam and was accordingly of no value as a precedent.

13. The decision of Dixit, C. J. in Maruti v. Gangadhar Rao 1964 Jab LJ 559 is next on the point. The learned Chief Justice reiterated the view of this Court as follows:--

'Rule 3 pre-supposes the appearance of the party at whose instance the case was adjourned but who is unable to give proper explanation for his omission to perform the specific act or acts for which the adjournment was granted at his instance. See Motilal Joshi v. Mohd. Shafi, (AIR 1956 Nag 179) and Bhivraj v. Janardhan 30 Nag LR 94 : (AIR 1933 Nag 370)

It is significant that the Division Bench decision in Motilal's case, supra, was read by the learned Chief Justice as reiterating this view. The decision then deals with the proper manner of disposing of an appealwhere an order has been made wrongly un-der Rule 3 even though it should have been made under Rule 2 of Order 17. In Lakhanlal v. Dasroolal, C. Revn. No. 631 of 1966, D/-31-8-1967 : 1967 Jab LJ (N) 95, Bhave J;, once again reiterated the settled view of this Court as follows:--

'It is now well settled that the proper way of interpreting Rules 2 and 3 of Order 17 of the Civil Procedure Code is to treat the disposal of the suit as having been made in accordance with Rule 2 in cases when, on account of non-appearance of the party, the explanation of failure to perform the acts referred to in Rule 3 was due but was not given on account of his absence, and that Rule 3 contemplates a case where the parties are present but have committed a default in some way which impedes the progress of the suit. (See Bhivraj v. Janardhan, 30 Nag LR 94. (AIR 1933 Nag 370) and Motilal v. Mohammad Shafi ILR (1956) Nag 132: (AIR 1956 Nag 179).' The same view was taken by Hon. the Chief Justice in Maruti v. Gangadhar Rao. 1964 MP LJ 919. It may be added that Bhave, J. also read the Division Bench decision in Motilal's case, supra, as reiterating this view. We then find that in Smt Sagar Bai v. Bhai Ratilal, 1970 MP LJ 213 A. P. Sen, J. while dealing with a slishtly different question assumed that Rule 2 and not Rule 3 applied in the absence of a party. The main question therein was whether the original Court itself could rectify the error of a decision being given under Rule 3 when Rule 2 of Order 17 applied. It was held that the original Court also had the power to rectify the mistake as did the appellate Court. The decision of Dixit, C. J. in Maruti's case, supra, was referred and followed.

14. Thus, for all these years except for the view of P. R. Sharma, J. alone in the two aforesaid Single Bench decisions which, as already stated, had no binding effect the consistent view of this Court ever since the year 1930 had been the same as expressed in Abdul Karim's case, (AIR 1930 Nag 152) (supra) following the Mad. Full Bench decision in Pichamma's case, (AIR 1918 Mad 143 (2)) (supra). However, in the year 1970 a learned Judge sitting singly made a reference for decision by a larger Bench of the question whether Order 17 Rule 3 could be tip-plied in the absence of a party. That was the main question which came to be decided by a Division Bench consisting of Shiv Dayal, J. (as he then was) and K. K. Dube, J. in Madanlal v. Jai Narayan, AIR 1972 Madb Pra 8. The Division Bench consideredthe question at length and reterated the ear-lier settled view of this Court that Rule 3 is inapplicable where any of the parties does not appear. Even though the earlier decisions are not quoted but it is obvious that the Division Bench on a consideration of all of them re-iterated the settled position and summarised the conclusions to that effect in para 19 of its opinion. The remedies available in the different situations were also pointed out to avoid any ambiguity. Except for conclusion No. (7) which deals with the meaning of appearance which is the other main question for our decision, the remain-ing conclusions summarised in para 19 of the opinion relate to this question and the remedies available to the aggrieved party in the different situations. The answer to the questions referred to the Division Bench are given in Para 20 of the opinion. In our opinion, the conclusions stated in para 19, except conclusion No. (7) which we shall deal with later, and the answers given in para 20 of the opinion correctly summarised the settled view of this Court till then as emerging from the earlier decisions. Thus, the Division Bench reiterated the view that Rule 3 had no application in the absence of all or any of the parties. This was, therefore, the second Division Bench of this Court taking this view, the previous being that which decided Motilal's case, (AIR 1956 Nag 179) (supra).

15. The next decision is Smt. Sita Bai v. Smt. Vidhyawati, AIR 1972 Madh Pra 198 by a Division Bench consist-ing of T. P. Naik and K. K. Dube, JJ. That was a revision against an order rejecting an application filed for restoration of an earlier application which in turn was for restoration of an even earlier application made for restoration of an application filed under Order 9 Rule 13, C. P, C. The original Court rejected the last application on the ground that no sufficient cause was shown to justify restoration. The revision to this Court was against that order. The Division Bench affirmed that order on merits and also held that the facts amply showed the laches in the conduct of the applicant at all stages which justified refusal of the relief claimed by him. Nothing more was required to be said by the Division Bench for deciding that revision, yet a passing reference was made to the decree which was to be set aside under Order 9 Rule 13 and in doing so, it was ob-served that the order not having been passed under Order 9, there was no occasion for filing an application under Order 9 Rule 13 C. P. C. It is those observations which have been relied on later as taking a view contrary tothat expressed in the earlier Division Bench decision in Madanlal v. Jai Narayan, (AIR 1972 Madh Pra 8) (supra). We have no doubt that these observations were merely obiter and they were not even intended to express any conflicting opinion though the words used do prima facie give that impression. There can be no dispute that the decision of the case neither required nor was it based on these observations. That apart, the only reasonable assumption can be that K. K. Dube, J. being a common member of both the Division Benches would not subscribe to two conflicting views and that too without making even a reference to his own earlier view expressed in Madanlal's case, supra. There was yet another earlier Division Bench decision in Motilal v. ' Mohd. Shafi, (AIR 1956 Nag 179) (supra) taking the same view as in Madanlal's case, supra. We have no doubt that the Division Bench deciding Smt. Sita Bai's case, supra, would not itself express a conflicting view ignoring the two earlier Division Bench decisions even if it was inclined to take a different view. It is also significant that there is no discussion of the point in the decision and these observations find place in para 4 at the end of the order after the earlier part of the order had, in fact, disposed of the case. All these factors lead us to the obvious conclusion that the observations of the Division Bench in Smt. Sita Bai v. Smt. Vidhyawati, supra, occurring in para 4 of the decision cannot be construed as the opinion of the Division Bench on this point and assuming it is, then it certainly had no binding effect because it was given per incuriam. These observations in Smt. Sita Bai's case, supra, were, however, relied on as expressing the opposite view in Narbada Prasad v, Awadesh Narain, AIR 1973 Madh Pra 179 before a single Bench. The learned single Judge, in our opinion, rightly held that these observations in Smt. Sita Bai's case, supra, were obiter and were not binding for obvious reasons.

16. Ultimately in a First Appeal, a Division Bench felt that the two Division Bench decisions in Madanlal v. Jai Narayan, (AIR 1972 Madh Pra 8) (supra) and Smt. Sita Bai v. Smt. Vidhyawati, (AIR 1972 Madh Pra 198) (supra) expressed conflicting views on account of which it referred some questions for decision by a larger Bench. The main question once again was whether it is open to the Court to proceed under Order 17 Rule 3 C. P. C. even in the absence of a party. The Full Bench consisting of Tare, C. J., Raina and Sharma. JJ. took the view that Order 17 Rule 3 C. P. C. applied even in theabsence of a party. That decision is Shanta-bai v. Chokhelal, 1975 MP LJ 832: (AIR 1976 Madh Pra 21) (FB) Raina, J. speaking for the Full Bench held that Rule 3 being stringent in nature should not be applied ordinarily in the absence of a party unless there is sufficient material on record to decide on merits and the Court considers it proper in the facts of the case; the Court has the jurisdiction to proceed under Rule 3 even in the absence of a party, the question whether it should do so or not being only a matter of propriety to be decided on the facts of the case and in case of ambiguity it must be assumed that the Court has proceeded under Rule 2. It is on the basis oi these conclusions that the questions referred were answered. The main decision given Was that Rule 3 of Order 17 applied even in the absence of a party. This opinion was given after noticing the earlier decision of this Court as also some others mentioned therein. Accordingly, this is the first authoritative decision of this Court taking the view contrary to that which prevailed in this Court ever since the year 1930. We have, therefore, to examine the reasons which persuaded the Bench deciding Shantabai's case, supra, to abandon the earlier settled view of this Court in favour of the opposite view in order to decide whether the view prevailing ever since 1930 should be permitted to continue or it should be abandoned in favour of the opposite view expressed for the first time in this Court in the year 1975. The reasons given by Raina, J. for taking the opposite view in Shantabai's case, supra, are:--

(1) There is nothing in the language of either Rule 2 or Rule 3 to indicate that Rule 3 pre-supposes the presence of all the parties.

(2) A defaulting party cannot deprive the Court of its power under Rule 3 merely by remaining absent so that if the Court has power to act under Rule 3 in the presence of the party at fault, that power is not lost merely by the absence of the party even when there is good cause for his absence.

(3) The expression 'or make such other order as it thinks fit' in Rule 2 of Order 17 is wide enough to include an order disposing of the case under Rule 3, and

(4) the view that Rule 3 pre-supposes the appearance of the parties is based on the consideration that if would not be proper to apply Rule 3 unless the party concerned is present and has been given an opportunity to explain its default in performing the necessary act but this is a different matter relating to the remedy available to a defaulting party which has nothing to do with the Court's power to proceed under Rule 3.

These are the main reasons given for the opinion of the Bench even though at the end in para 12 it has also been mentioned that the decision of the Supreme Court in Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993 also to some extent supports the argument that absence of a party did not automatically exclude the application of Rule 3 of Order 17. This was said with reference to para 22 of that decision. We shall now proceed to examine these reasons.

17. We may point out that the reasons given by the Full Bench for taking the contrary view are all met in the discussion made earlier. We have already pointed out that express inclusion of the words 'the parties or any of them fail to appear' in Rule 2 and their deliberate omission from Rule 3 provides a clear indication that Rule 2 alone applies where there is default in appearance of all or any of the parties at the adjourned hearing. Nothing has been said in Shantabai's case, supra, in this connection except to state the conclusion that there is no indication in the language of these two Rules. The next reason is also not plausible. There is no question of the defaulting party depriving the Court of its power by remaining absent and avoiding the application of Rule 3. It is not that an order under Rule 2 is set aside automatically. The Court has to be satisfied by the defaulting party that its absence was for valid reason and then only the Court puts back the clock and not otherwise. Thus, there is no question of the defaulting party gaining any advantage by the so called double default. The need of providing an opportunity to the defaulting party to give an explanation for the default is only one of the arguments in favour of the view that Rule 3 pre-supposes the presence of all the parties and that is not by itself the basis of that view. This aspect has also been dealt with at length earlier. The wide meaning given to the expression 'or make such other order as it thinks fit' occurring in Rule 2 is, in our opinion, not called for when admittedly there is unanimous opinion for a strict construction of Rule 3. Moreover, this reasoning overlooks the obvious consequence that Rule 3 is thereby rendered superfluous and such a result has to be avoided unless it must necessarily follow from the clear words of the statute. In out opinion, the reasons expressly given for taking the opposite view do not withstand a close scrutiny and at any rate they do not justify a departure from the settled view of this Court prevailing for such a long time.The Full Bench in Shantabais case (AIR 1976 Madh Pra 21) (supra) does not say that the earlier settled view of this Court is not based on a plausible construction of Rules 2 and 3 of Order 17 C. P. C. so that notwithstanding the long period for which it had prevailed in this Court, it must be departed from. It is obvious that even if both views are possible, the view which was prevailing in this Court for such a long time being one of them, it would be undesirable to unsettle the law by departing now from that view.

18. The observations of the Supreme Court in para 22 of the decision in Arjun Singh v. Mohindra Kumar, (AIR 1964 SC 993) (supra) alone remain to be considered in this connection, There can be on doubt that if that decision supports the view taken in Shantabai's case (AIR 1976 Madh Pra 21) (FB) (supra) then this fact alone is sufficient to uphold the correctness of that view. However, we are unable to read anything in that decision to support that view. In Para 22 of the decision several reasons were given for rejecting the argument that Rule 3 instead of Rule 2 of Order 17 C. P. C. applied to the proceedings on May 29, 1958 in that case, One of the reasons expressly stated for excluding the application of Rule 3 was that the order-sheet on May 29, 1958 clearly showed that the case proceeded ex parte against the defendant, i. e., in the absence of the defendant. It was further stated that in order to accept the plea that Rule 3 applied, it must be clearly shown by overwhelming evidence that the proceedings were not ex-parte. No doubt there are other reasons too given in para 22 for holding that Rule 3 of Order 17 did not apply to the proceedings on May 29, 1958. All the same, the absence of defendant on that date is expressly stated as one of the several reasons to exclude application of Rule 3, It is, therefore, difficult for us to appreciate how the observations in para 22 of this decision can support to any extent the argument that absence of a party does not exclude applicability of Rule 3 of Order 17 C. P. C. In our opinion, these observations, on the other hand, support the view that Rule 3 pre-supposes the presence of all the parties. Thus, the reasons given by the Full Bench in Shantabai's case, supra for taking the opposite view do not bear scrutiny, with the result that the contrary view cannot be supported on the grounds which led to its making. With the greatest respect to the learned Judges who decided Shantabai's case, supra, we are unable to persuade ourselves that that view expressed therein is correct.

19. We shall now refer to some decisions of the other Courts. The view of the Madras High Court expressed in Pichamma's case, (AIR 1918 Mad 143 (2)) (supra), was reiterated in Gurusanthayya v. Setra Veerayya, AIR 1953 Mad 825. Same is the view expressed by a Full Bench of the Andhra Pradesh High Court in M. Agaiah v. Mohd. Abdul Kareem, AIR 1961 Andh Pra 201. The Orissa High Court has also taken the same view. See, Parikshit Sai v. Indra Bhoi, AIR 1967 Orissa 14 and Hindusthan Steel Ltd. v. Prakash Chand AIR 1970 Orissa 149. In Basalingappa v. Shidramappa, AIR 1943 Bom 321 (FB) a Full Bench held that if all evidence is led after default of appearance, the decree passed is ex parte and such a decree fell under Order 17 Rule 2. On this point, the Bombay decision takes an intermediate position. The High Courts of Allahabad and Andhra Pradesh have made amendments in Rule 3 of Order 17 in the years 1953 and 1961 respectively to put the matter beyond doubt that Rule 2 alone applies to cases of default in appearance. For this reason, later decisions of these Courts are not of assistance.

20. The Full Bench in Shantabai's case, (AIR 1976 Madh Pra 21) (FB) (supra) also relied on Dayal Chand v. Sham Mohan, AIR 1971 Delhi 183 and Ismail Suleman v. State AIR 1971 Guj 42. In the Delhi case, full evidence had been recorded and the adjournment was given only for hearing arguments. No separate date for hearing arguments being contemplated, this case in which Rule 3 was applied even in the absence of a party is clearly distinguishable for this reason alone. The Gujarat case holds that where there is enough material on record to decide the suit on merits, Rule 3 can be applied even in the absence of a party. Gopi Kisan v. Ramu, AIR 1964 Raj 147 (FB) is a Full Bench decision of that Court which holds that Rule 3 being a stringent provision, it should be applied with circumspect caution and judicial restraint. All the same, it takes the view that Rule 3 applies even in the absence of a party, since a case of double default does not take away the case from the purview of Order 17 Rule 3. The fallacy in the reasoning based on double default is already pointed out by us. The learned Judges of the Rajasthan High Court disagreed with the Madras Full Bench case already quoted by us and which has been followed in this Court at least ever since the year 1930. We are unable to agree with the contrary view of the Rajasthan High Court and it is not necessary to reiterate our reasons for the same. The contrary view does not meet theeffect of difference in the language in the two Rules which is undoubtedly deliberate. Similarly, the intermediate view is more a suggestion of a practical course. However, no difficulty requiring a practical course arises if we give full effect to the plain and unambiguous language of the two Rules. All this has been considered earlier at length. We may also mention that the Orissa High Court expressly dissented from the view of the Rajasthan High Court.

21. Thus, on a conspectus of all the authorities on the point, we are of the opinion that there is no reason to depart from the settled view of this Court prevailing at least ever since the year 1930 that Rule 3 of Order 17 pre-supposes the presence of all the parties and to every case of default in appearance of all or any of the parties, Rule 2 and not Rule 3 of Order 17 C. P. C. applies. We are also of the opinion that the view expressed by Niyogi, A. J. C. in Bhiv-raj v. Janardhan, 30 Nag LR 94: (AIR 1933 Nag 370) together with the reasons for that view correctly states the law on the point and that in Madanlal v. Jai Narayan, AIR 1972 Madh Pra 8 the conclusions stated in para 19 of the decision (except conclusion No. 7 therein) and the answers contained in para 20 correctly summarise the legal position including the remedies available to the defaulting party in the defferent situations. It necessarily follows that the two Single Bench decisions of P. R. Sharma, J. in Kan-haiyalal v. Usmanali, C. Revn. No. 292 of 1956 D/- 14-4-1960 : 1960 Jab LJ (N) 14 and Sunderlal v. Motilal C. Revn, No. 51 of 1962 D/- 15-3-1962 : 1962 Jab LJ (N) 169 (G. Bench), the observations of the Division Bench in Smt. Sita Bai v. Smt. Vidhyawati, AIR 1972 Madh Pra 198 and the decision in Shantabai v. Chokhelal, 1975 MPLJ 832: (AIR 1976 Madh Pra 21) (FB) are not correctly decided. This is our answer to the first main question stated by us at the outset.

22. The other main question for our decision is about the meaning of appearance of a party at a hearing in the Court. There can be no doubt that the mere conscious presence of the party himself in the Court for participation therein when the case is called out, whether the party thereafter actively participates at the hearing or not, does amount to appearance of that party at that hearing. In the case of personal presence of the party, it constitutes appearance even when he abstains from appearing after refusal of an adjournment, Thus, in the case of presence of the party which constitutes appearance, even his further withdrawal has no effect and Rule 3 is attracted. The difficulty sometimes arises when the party is him-self absent and the appearance is through his counsel. In such a situation, the question has to be answered with reference to the extent of the authority of the counsel and his conduct at the commencement of the hearing when the case is called. The real test is whether the counsel has done any act at that hearing of the suit or was his presence merely to in-form the Court that he was not duly in-structed to appear at the hearing on account of which there is no appearance of the party through him on that date. In such a situation, it would be a question of fact in each case to be answered with reference to the extent of authority of the counsel and the indication of the same given by him to the Court at or before commencement of the hearing when the case is callect. It is equally clear that once the counsel has commenced participating at the hearing without indicating that he was not duly instructed to represent the party at that hearing except to seek an adjournment, his subsequent withdrawal when the hearing has commenced will not amount to non-appea-ranee of the party through him. In Bhivraj v. Janardhan (AIR 1933 Nag 370) (supra) Niyogi, A. J. C. held as follows:--

'It is urged that a pleader was present in Court on behalf of the defendant. There is nothing in the order sheet to show that he had received instructions to account for the default committed by his client. His mere physical presence under the circumstancescannot be regarded as equivalent to the presence of the party.'

(Underlining by us).

According to this view, unless the counsel is duly instructed for appearance on that date, his mere physical presence cannot be treated as the presence of the party. Obviously, the mere appearance of the pleader to inform the Court that he was not duly instructed by his client is an act of courtesy rightly extended to the Court and that should not jeopardise the interest of the party merely because of this courtesy shown by his counsel to the Court. The Division Bench in Motilal Joshi v. Mohd. Shafi, (AIR 1956 Nag 179) supra, affirmed this view and held that when a counsel appeared only to request for an adjournment and on its refusal reported 'no instructions', there was no appearance of the party whom the counsel represented. The conclusion was reached after a review of the authorities oa the point till then and the test applied was whether the counsel had acted in any manner for his client at that hearing before reporting 'no instructions'. It was thought that a mere request for adjournment was by itself not an act of participation at the hearing to make it an appearance on behalf of that party. In our opinion, the test applied as well as the conclusion reached was correct. A request for an adjournment made prior to the commencement of hearing cannot amount to an act of participation at the hearing since such a request prior to the commencement of the hearing is obviously no part of the hearing and is merely a request not to commence the hearing on that date. The position, however, would be dif-ferent if the request for adjournment is made by the counsel after he has done some act which amounts to his participation at the hearing. An act done to constitute appearance at the hearing cannot be nullified nor the appearance resulting therefrom wiped out by a subsequent withdrawal during that hearing. It would be unsafe to attempt any exhaustive list dealing with all such situations since it would be a question of tact in each case to be answered by application of the test whether, the counsel was duly instructed to appear at the hearing or his presence was merely to inform the Court that he was not appearing at the hearing to represent his client and that no act of participation at the hearing was done by him to constitute appearance of the party. The extent of counsel's authority would also be relevant. In Madanlal v. Jai Narayan (AIR 1972 Madh Pra 8) (supra) conclusion No. (7) stated in para 19 and the observations occurring earlier in para 16 in the opinion of the Division Bench have to be modified since they are definitely too wide and to some extent at variance with the view of the earlier Division Bench in Motilal's case, supra, In the order of present reference, it is pointed out that the Division Bench decision in Motilal's case, supra, wasnot brought to the notice of the Division Bench in Madanlal's case, supra. That explains the variance, which was obviously not intended. The test applied in Madanlal's case, supra, by the Division Bench is the same as by the earlier Division Bench in Motilal's case, supra, However, conclusion No, (7) stated in para 19 contains a passage which reads as follows:--

'But where a counsel appears and seeks adjournment, and, when the adjournment prayed for is refused, he abstains from taking part in the proceeding saying that he has no further instructions it tantamounts to the appearance of the party.'

To the same effect are observations in para 16 earlier. This portion must be read as confined to that category of cases where the counsel has done some act amounting to participation at the hearing so that the same constitutes appearance of the party through counsel and then he withdraws after refusal of an adjournment sought later during the course of that hearing. Thus, conclusion No. (7) in Madanlal's case, supra, has to be read modified to the extent indicated. In our opinion, the conclusion of the Division Bench in Motilal's case, supra, is the correct view on this point. We find that substantially the same view is taken in Soonderlal v. Goorprasad, (1899) ILR 23 Bom 414, Satish Chandra Mukherjee v. Ahara Prasad Mukerjee (1907) ILR 34 Cal 403 and Basalingappa v. Shidramappa, AIR 1943 Bom 321 (FB). Thus, the meaning of the word 'appearance' for the purpose of attracting Rule 2 of Order 17 has to be understood in this manner. The other main question stated at the outset is answered by us in this manner.

23. As a result of these conclusions, our answers together with the questions referred to us, are stated as under:--

Questions,Answers(1) If, when a suit is called on for hearing, a party's counsel appears and seeks adjournment but when adjournment is refused he retires saying that he has no instructions whether this will amount to 'appearance' of the party whom the counsel represents

(a) If the counsel had sought adjournment because he was instructed by his client to ask for an adjournment only, and not to proceed with the trial if adjournment be refused?

It will be no appearance of the party and R. 2 of O. 17 C. P. C. alone would be attracted. However, in such a case the defaulting party must show 'sufficient cause' for non-appearance as well as for not fully instructing the counsel.

(b) It the counsel feels a necessity to seek adjournment so that he may prepare himself and, on his own, seeks adJournment.

It will be no appearance of the party and R. 2 of O. 17 C. P. C. alone would be attracted.

(2) If, when a case is called on for hearing, the counsel appears (without making any request for adjournment) merely to inform the Court that he has no instructions and, therefore, would not appear, will it still amount to appearance of a counsel for the purposes of O. 9, R. 8, or O. 17, R. 2 C, P. C.P

It will be no appearance of the party and R. 2 of O, 17 C. P. C. alone would be attracted.

(3) Whether an application under O. 9 C. P. C. will lie for setting aside the dismissal of a suit in the following circumstances: -

(a) The plaintiff had not been asked to do something and he did not appear when the case was called on for hearing.

Yes. Order 17 R. 2 C. P. C. would alone be attracted.

(b) The plaintiff was asked to do something which he did not do, nor did he appear when the case was called on for hearing.

Yes. Order 17 Rule 2 C. P. C. would alone be attracted.

(4) Whether, in the following situations, the defendant can apply under O. 9 R. 13 C. P. C for setting aside an ex parte decree: -

(a) When the defendant had not been asked to do something and he did not appear and the Court decided the suit on the basis of the existing material without or after taking any further evidence on record.

Yes. Order 17 Rule 2 C. P. C. would alone be attracted.

(b) When the defendant had been asked to do something which he did not do, nor appeared when the case was called on for hearing and the Court decided the suit on the existing material without taking any further evidence for the plaintiff.

Yes. Order 17 Rule 2 C. P. C. would alone be attracted.

(c) When he had been asked to do something which he did not do and did not appear when the case was called on for hearing and therefore, on the same day, the Court took on record ex parte evidence produced by the plaintiff.

Yes. Order 17 Rule 2 C. P. C. would alone be attracted.

(d) When he had been asked to do something which he did not do, nor appeared when the case was called on for hearing and the trial Court adjourned the hearing for recording plaintiff's evidence ex parte and on the next date, after recording plaintiffs ex parte evidence, passed an ex parte decree against him.

Yes. Order 17 Rule 2 C. P. C. would alone be attracted.

24. This case shall now go back to the appropriate Bench for its decision on merits in accordance with the opinion given by us on the questions referred for decision.

Raina, J.

25. Although a large number of questions have been referred by the Hon'ble the Chief Justice to this Bench of five Judges for consideration, I think, the answer to all those 4 questions depends on the decision of the following two questions:

(1) Whether the Court has jurisdiction to proceed under Rule 3 of Order XVII of the Code of Civil Procedure against a party in his absence and whether the Full Bench decision of this Court in Shantabai v. Chokhelal, 1975 MPLJ 832 : (AIR 1976 Madh Pra 21) (FB) on the point is correct?

(2) What constitutes 'appearance of a party at the hearing' within the meaning of Rule 2 of Order XVII of the Code of Civil Pro-cedure?

26. So far as the first question is concerned, there is nothing to indicate in the order of reference on what grounds the correctness of the unanimous decision of the Full Bench in Shantabai v. Chokhelal (AIR 1976 Madh Pra 21) (FB) (supra) is doubted. There were also practically no arguments at the bar questioning the correctness of the said decision. Shri P. R. Padhye, learned counsel for the applicants, supported the decision; while Shri N. S. Kale, appearing tor the other side, indirectly questioned the correctness of the decision by merely saying that, in his view, it was not open for the Court to proceed under Rule 3 of Order XVII in the absence of a party. He did not, however, put forth any arguments in support of his view which may require consideration. From paragraph 3 of the order of reference it appears, on the other hand, that Shri Kale relied on the decision in support of his contention that since the order of the trial Court did not make a mention whether it acted under Rule 2 or Rule 3 of Order XVII, it must be assumed that it proceeded under Rule 2. My learned brother, Verma J. has, however, in a very able and comprehensive discussion of the question, pointed out that the decision of the Full Bench is not correct and should be reversed. I very much regret my inability to agree with him. As there were no arguments at the bar on this question, it is necessary for me to deal with the points raised by him in support of his opinion.

27. Before proceeding to discuss the question on merits, it is necessary to state that my learned brother has been very much influenced by the consideration that the Full Bench decision upset a long-standing settled view of this Court and, therefore, it is necessary to restore it. To my mind, so far as 1 can gather from a number of decisions of this Court preceding the decision of the Full Bench, there was divergence of opinion, not only in other High Courts but even in this Court, on the question whether it is opento the Court to proceed under Rule 3 of Order XVII of the Code of Civil Procedure in the absence of a party. The settled view was only to the effect that where the Court proceeds to dispose of a case in the absence of a party without indicating whether it was acting under Rule 2 or Rule 3 of Order XVII, the order should be construed as one under Rule 2 and this view was upheld by the Full Bench.

28. In two decisions of the Judicial Commissioner's Court, at Nagpur, namely Abdul Karim v. Ratilal Gujrati AIR 1930 Nag 152 and Bhivraj v. Janardhan 30 Nag LR 94 : AIR 1933 Nag 370, it was held that Rule 3 of Order XVII pre-supposes appearance of the party at whose instance the case was adjourned and, therefore, the said rule is not attracted in the absence of a party. In these cases the decision of Madras High Court in Chandramati Aminal v. Narayanaswami Aiyar (1910) ILR 33 Mad 241 was followed. In Basalingappa v. Shidramappa, AIR 1943 Bom 321 (FB) a Full Bench of the Bombay High Court expressed a contrary view as would appear from the following observations at p. 324---

'The observations in the latter case that Rule 2 and Rule 3 are in direct conflict with each other are not, however, correct. They are neither conflicting nor mutually exclusive.' The decision of the Calcutta High Court in Mariannissa v. Ramkalpa Gosain (1907) ILR 34 Cal 235 was quoted with approval. In that case, while dealing with Ss. 157, 158 of the Code of Civil Procedure, 1882 which corresponded to Rules 2 and 3, Order XVII of the present Code, it was observed as under at p. 237- 'It may well happen, for instance, that a plaintiff to whom time has been granted to produce evidence, not only fails to do so, but also fails to appear. 'In such a case, if there are no materials on the record, the appropriate procedure to follow would be that laid down in Section 157; but if there are materials on the record, the Court ought to proceed under Section 158'.

A similar view was later taken by a Full Bench of the Rajasthan High Court in Gopi-kishan v. Ramu AIR 1964 Raj 147 (FB) and certain either High Courts.

29. There was thus a divergence of opinion on this question between other High Courts and this divergence was reflected in the decisions of this Court. So far as the Nagpur High Court is concerned, there appear to be only two decisions, namely, Dayalji v. Kedarnath AIR 1953 Nag 222 and Motilal Joshi v. Mohammad Shafi AIR 1956 Nag 179. In the former Mudholkar, J. merelyemphasized that the provisions of Rule 3 of Order XVII, being penal in nature, ought to be construed strictly, and where it was not clear whether a particular case falls under Rule 3 or Rule 2, the Court must lean in favour of holding that it falls under Rule 2 and not under Rule 3. As pointed out above, this view has been upheld by the Full Bench in Shantabai v. Chokhelal (AIR 1976 Madh Pra 21) (FB) (supra). In Motilal Joshi v. Moham-mad Shafi (supra) the question whether the Court has jurisdiction to proceed under Rule 3 of Order XVII in the absence of a party does not seem to have been either debated or con-sidered and, therefore, in my view, it cannot be considered as an authority on the point.

30. After the formation of the new State of Madhya Pradesh, the first decision we may notice is Manoramadevi v. Kanhaiyalal 1957 Jab LJ 268. In that case the trial Court had fixed the case for plaintiff's evidence on 6-10-1955; but, as on that date the plaintiff requested for further time to enable her to produce her witnesses and to examine, herself, the Court adjourned the case to 22-10-1955. The plaintiff and her counsel both were absent on that date. The trial Court thereupon proceeded under Rule 3 of Order XVII. Samvatsar, J., in the aforesaid circumstances, held that where the order has been expressly passed by the Court concerned under Rule 3 of Order XVII, it is not open to construe it otherwise and to hold that it should be deemed to be one passed under Rule 2 of Order XVII. Thus, the competence of the Court to proceed under Rule 3 of Order XVII in the absence of the party in default was expressly recognized. A similar view was expressed by Naik, J. in Goverdhan v. Ganesh ILR (1962) Madh Pra 766. In that case the Court had proceeded under Rule 3 of Order XVII in the absence of a party and it was held that although the provisions of Rule 2 of Order XVII would have been more appropriate the trial Court, having exercised its jurisdiction under Rule 3 of O, XVII, the rights of the parties would be regulated by what the trial Court actually did. Thus, this decision also clearly proceeds on the view that it is open to the Court to proceed against a party under Rule 3 of Order XVII even in his absence. Besides these two decisions, there ate two decisions of P. R. Sharma, J. in Kauhaiyalal v. Usmanali 1960 Jab LJ (N) 14 : C. Revn. No. 292 of 1956, D/- 14-4-1960 and Sunder-lal v. Motilal 1962 Jab LJ (N) 169 : C. Revn. No. 51 of 1962 D/- 15-3-1962 in which it was held that the provisions of Rule 3 of Order XVII are not rendered inapplicable merely because the party at fault has failed to appear. My learned brother. Verma J., has expressed the opinion that these decisions were rendered per incuriam. We may be in a position to say that; but so far as the subordinate Courts are concerned, they cannot be expected to ignore them on this ground. I have already referred to two other decisions on the point taking a similar view which have not been noticed by Verma, J.

31. It was in view of this divergence of opinion in this Court, apart from the divergence of opinion in various High Courts in this country, that the matter was referred to a Division Bench consisting of Shiv Dayal, J. (as he then was) and K. K. Dube, J, in Madanlal v. Jainarayan AIR 1972 Madh Pra 8. In that case it was held that Rule 3 of Order XVII is inapplicable where any of the parries does not appear; but, again, a contrary View was expressed by another Division Bench consisting of T. P. Naik and K. K. Dube, JJ. in Smt. Sitabai v. Smt. Vidyawati AIR 1972 Madh Pra 198. The observations of the Division Bench in Smt. Sitabai v. Smt. Vidyawati (supra) on the question whether Rule 3 of Order XVII is attracted even in the absence of a party were considered as obiter by Shiv Dayal J. (as he then was) in Narbada Prasad v. Awadesh Narain AIR 1973 Madh Pra 179. When the same question arose before another Division Bench, it considered it proper to refer the matter to a larger Bench, particularly because in Madanlal v. Jainarayan (supra) there was no reference to the various decisions of this Court in which a contrary view had been expressed nor to the Full Bench decision of Bombay High Court in Basalingappa v. Shidramappa (AIR 1943 Bom 321) (FB) (supra) and that of Rajasthan High Court in Gopikisan v. Ramu (AIR 1964 Raj 147) (FB) (supra). If the decisions, in which a contrary view had been expressed had been taken into consideration, the position would have been different; but it seems the Bench had no assistance whatsoever from the bar. It seems the important decisions of this Court as well as of other High Courts in which a contrary view had been expressed, were not brought to the notice of the Bench It was in these circumstances that the Full Bench in Shantabai v. Chokhelal (AIR 1976 Madh Pra 21) (FB) came to be constituted and it unanimously decided that it is open to the Court to proceed under Rule 3 of Order XVII even in the absence of the pcirty in default but the discretion should be judiciously exercised in the light of the observations made therein.

32. I am, therefore, of the view that the decision in Shantabai v. Chokhelal (AIR 1976 Madh Pra 21) (FB) cannot be treated as onewhich has upset a settled view of this Court on the question under consideration and needs to be reversed on that ground. It is, therefore, necessary to examine the question whether the decision of the Full Bench in Shantabai v. Chokhelal is correct or not with an open mind uninfluenced by the consideration that a settled view as this court has been dethroned. If it is incorrect, (here should be no hesitation in setting it aside because, as observed by Bhagwati, J. in Umed v. Rajsingh AIR 1975 SC 43 at p. 58, to perpetuate an error is not heroism and it is the compulsion of judicial conscience to rectify it at the earliest.

33. I now proceed to consider whether the decision of the Full Bench in Shantabai V. Chokhelal (AIR 1976 Madh Pra 21) (FB) is not correct for the reasons given by Verma J., I may here point out that there is no controversy on the point that the provisions of Rule 3 of Order XVII being stringent, the Court should ordinarily proceed under Rule 2 and not under Rule 3 of Order XVII; and where the Court does not indicate under which rule it has proceeded, the order must be construed as one under Rule 2 of Order XVII. The only point in controversy is whether the Court has no jurisdiction to proceed under Rule 3 against the defaulting party in his absence under any circumstances. My learned brother has held that Rule 2 is attracted where a party is absent. There is no quarrel with this proposition. But the question is: In Rule 3 automatically rendered inapplicable thereby? In the first place, there is nothing in the language of Rule 3 to warrant the construction that it is applicable only in the presence of the party concerned and not otherwise. It may not ordinarily be considered proper to act under Rule 3 without giving the party concerned an opportunity to give an explanation for his default. But propriety is one thing jurisdiction quite another.

34. Rule 2 deals with default in appearances; while Rule 3 deals with default in producing evidence or performing some other act for which adjournment was granted at the request of the party. Where the default is of either kind, the matter falls within the purview of the rule concerned; but where there is a double default, obviously both the rules are attracted and it is open to the Court to proceed in such manner as it considers just and proper in the circumstances of the case.

35. In Shantabai v. Chokhelal (AIR 1976 Madh Pra 21) (FB) the Full Bench made the following observations in paragraph 8, whichhave a very important bearing on the construction of Rules 2 and 3:

'Where a party commits a default of the nature specified in Rule 3 after securing an adjournment for the purpose, Rule 3 empowers the Court to decide the suit on merits. If the Court can do so in the presence of the party at fault, he cannot deprive the Court of this power merely by remaining absent even assuming that there is good cause for his absence.

It would also be pertinent to refer to the following observations of the Delhi High Court in Dayalchand v. Sham Mohan AIR 1971 Delhi 183 in paragraph 11 at p. 186

'A party cannot deprive the Court of the power to decide the suit forthwith by merely remaining absent. To so construe Rule 3 'would amount to reading into Rule 3 the words when the party in default is present' which are not there. Such a construction is not permissible.'

36. Apart from the above considerations, it has to be borne in mind that R, 2 lays down that where a party fails 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. The expression 'or make such other order as it thinks fit' has been construed by a number of High Courts to include a decision on merits. I entirely agree with this conclusion.

37. In Subramania Othuvar v. Munusa-miya Pillai AIR 1916 Mad 897 (1) it was held that where the plaintiff has closed his case, and there is evidence which, if rebutted, would prove his case, it is not a judicial exercise of discretion to dismiss the suit for default; and the Court should record the defence evidence, even though the plaintiff is absent, and dispose of the case on its merits.

In Tulsiram v. Sitaram AIR 1959 Cal 389 it was held that the words 'make such other order as it thinks fit' in Rule 2 of Order XVII mean that the Court can adjourn the suit or it can decide the suit on merits, if there are materials on the record for doing so, A similar view was expressed by the Delhi High Court in Dayal Chand v. Sham Mohan (AIR 1971 Delhi 183) (supra). The relevant observations of the Court in paragraph 11 are as under:

'Firstly, even if it is assumed that Rule 3 does not apply when a party is absent, still the Court has a power to pass an order on merits under the last words of Rule 2, namely, 'make such other order as it thinks fit: Secondly, there is nothing in Rule 3 to show that an order thereunder cannot be passed on merits if the party committing the default is absent.'

38. My learned brother is in favour of putting a narrow construction on the aforesaid expression; but such a construction would lead to certain anomalies, because it would mean that the Court has no jurisdiction to decide a suit on merits in the absence of a party. This can be demonstrated by an illustration. Supposing the plaintiff has closed his case after adducing his evidence and thereafter the case is adjourned for a part of the evidence of the defendant. If the plaintiff remains absent on the followed date and the Court, after recording the evidence of the defendant, proceeds to decide the suit on merits and decrees the claim of the plaintiff, can it be said that it has acted without jurisdiction and the decree as such is a nullity? To put a construction on Rule 2 of Order XVII whereby a decision given on merits in the aforesaid circumstances is to be treated as without jurisdiction and as such a nullity would not be consistent with the scheme of the Code and would result in hardship and injustice in many cases. In Madanlal v. Jai Narayan (AIR 1972 Madh Pra 8) (supra) it was held by Shiv Dayal, J. (as he then was), in paragraph 9, that where the plaintiff does not appear and the defendant has closed his case, there is no impediment in the law which prevents the Court from passing a decree in favour of the plaintiff on the material on record in spite of his non-appearance. Thus, the power of the Court to proceed on merits in certain circumstances, even in the absence of a party, was recognized in that case. It would, therefore, be proper to construe R, 2 of Order XVII in such a manner as to enable the Court to give a decision on merits even in the absence of a party. Once such jurisdiction is recognized, it would be logical to conclude that it is open to the Court to proceed under Rule 3 of Order XVII in suitable cases, even in the absence of the party at fault, as pointed out in the Full Bench case Sharitabai v. Chokhelal AIR 1976 Madh Pra 21) (FB).

39. I need not repeat other reasons, which have already been given in the Full Bench decision in Shantabai v. Chokhelal (AIR 1976 Madh Pra 21) (FB) and refer to the various decisions of this Court and other High Courts in which a similar view has been taken. So far as the decision of the Supreme Court in Arjun Singh v. Mohindra Kumar AIR 1964 SC 993 is concerned, it appears that the question under consideration was neither expressly raised nor considered in that case.

40. Before I conclude the consideration of this question, I may refer to another point on which some stress has been laid by my learned brother, Verma, J. for coming to theconclusion that the Court has no jurisdiction to proceed under Rule 3 of Order XVII in the absence of the defaulting party. It has been said that if Rule 3 of Order XVII is to be construed so as to include within its ambit cases of default in appearance, the defaulting party would have to be given an opportunity, for the first time, by the Appellate Court to show that his default can be condoned for valid reasons and this would be stretching the powers of the Appellate Court requiring it to adopt a procedure for which there is no sanction in the Code of Civil Procedure. To my mind no question of stretching the powers of the Appellate Court at all arises because it is always open to the Court to rectify errors of the trial Court in the exercise of its ordinary appellate jurisdiction. If, in appeal, the appellant is able to show prima facie on affidavit or otherwise that there was good cause for his absence and that, if he had appeared, he would have produced his evidence or performed other acts for which he had secur-. ed the adjournment, the Appellate Court can convert the order under Rule 3 into an order under Rule 2 of Order XVII and leave it to the party to have the decision against him set aside by an application in the trial Court under Order IX. Such a course was adopted by this Court in a number of cases. In Maruti v, Gangadhar Rao 1964 Jab LJ 559 Dixit, C. J. held that where the trial Court erroneously dismissed a suit under Rule 3 of O, XVII when it should have dismissed it under Rule 2, the proper order to pass in an appeal is to substitute the order of the trial Court by an order dismissing the suit under Rule 2 of Order XVII. A similar view was taken by a Division Bench in Madanlal v. Jai Narayan (AIR 1972 Madh Pra 8) and also by the Full Bench in Shantabai v. Chokhelal (AIR 1976 Madh Pra 21) (FB) (supra). To say that such a course is not appropriate or not permissible would lead to grave injustice. Where the Court expressly proceeds under Rule 3 of Order XVII, the party aggrieved would ordinarily file an appeal and in such a case it would be proper exercise of jurisdiction by the Appellate Court to give suitable relief to the appellant by substituting the order under Rule 3 by an order under R, 2 of Order XVII if it finds that the trial Court had wrongly proceeded under Rule 3.

41. Thus, after considering the whole matter over again in the light of the opinion of my learned brother Verma, J. I am still of the view that the decision of the Full Bench in Shantabai v. Chokhelal (AIR 1976 Madh Pra 21) (FB) is correct

42. As regards the meaning of the words 'appearance of a party at a hearing in theCourt'. I agree with the view expressed by my learned brother, Verma J.

Bhachawat, J.

43. I have gone through the opinion of my learned Brother Verma, J. and also the opinion of my learned Brother Raina. J. I agree with Verma, J., and have nothing to add.

Shiv Dayal. C.J.

44. I have had the advantage of perusing the opinion prepared by my learned brother, Verma, J. and that prepared by my learned brother, Raina, J. I entirely agree with Verma, J. in all the conclusions reached by him in paragraph 23, and in the reasons recorded by him. I would add a few words.

45. Verma, J. has concurred in the opinion expressed by a Division Bench in Madan-lal v. Jai Narayan, AIR 1972 Madh Pra 8. It was on a reference by Raina, J. sitting singly. The Division Bench evidently made an endeavour to clear the remedial law from ambiguities by setting out its reasons for which the conclusions (enumerated at the end) were reached, without burdening it with case law. In Smt. Sitabai v. Smt. Vidhyavati, AIR 1972 Madh Pra 198; there was no contrary decision, and could not be, by another Division Bench. (See observations in Mahadevlal v. Administrator General of W. B., AIR 1960 SC 936 and Jaisri v. Rajdewan, AIR 1962 SC 83. There were certain passing observations which were merely obiter, as discussed elaborately by Verma, J. in paragraph 15. However, Raina, J., speaking for the Division Bench, again referred the question for decision by a larger Bench in Shantibai v. Chokhelal, 1975 MPLJ 832 : (AIR 1976 Madh Pra 21) (FB) and then Madanlal v. Jai Narayan (supra) was overulded.

46. Suppose on the 1st January, which was fixed for evidence of both the parties, the plaintiff produced his evidence and closed his case; while the defendant produced only one witness out of his list of 5 and sought an adjournment for production of the remaining 4; the Court granted adjournment and fixed the 1st February for the defendant to bring his remaining witnesses. On the 1st February neither the defendant appears, nor any of his witnesses; the Court does not grant adjournment and proceeds to decide the suit forthwith; and an ex parte decree is passed in favour of the plaintiff against the defendant.

(a) According to Madanlal v. Jai Narayan (AIR 1972 Madh Pra 8) (supra) (since the defendant did not appear) Rule 2 will apply and the defendant's remedies are:--

(i) to apply under Order 9, Rule 13, for setting saide the ex parte decree on the ground ofsufficient cause which prevented him from appearing on 1st February, or

(ii) to appeal from the ex parte decree on the ground that the judgment and decree appealed from are erroneous on merits. The scope of each of these two remedies is clearly distinct; there is no uncertainty, no ambiguity.

(b) The contrary view is that in spite of the defendant's non-appearance and because of his non-production of evidence, for which he had taken time, the ex parte decree is under Rule 3. Consequently, an appeal will lie. According to this view, the ex parte decree is also within Rule 2, because the expression 'or make such an order as it thinks fit' includes a decision on merits. Therefore, the remedy will also be under Order 9, Rule 13. The defendant is then on the horns of a dilemma; to which of the two remedies he can resort? And, still the risk is there; if he applies under Order 9, his application may be dismissed on the ground that Rule 3 applies; if he prefers an appeal, it may be dismissed on the ground that the order does not fall under Rs 3; perhaps he will be advised to take recourse to both the remedies.

47. The question relates to every day practice. The law relating to remedies must be clear, certain and unambiguous; otherwise, the parties are put to great hardship and suffer injustice, when applications under Order 9 are dismissed on the ground that the order passed on non-appearance of a party also falls under Rule 3 of Order 17 and, therefore, the only remedy was by way of an appeal; or appeals are dismissed on the ground that the order passed was within Rule 2. For this reason and also for the reason that conclusion (7) in Madanlal v. Jai Narayan (AIR 1972 Madh Pra 8) (supra) deserved to be explained further, it became necessary to frame several questions which would cover all contingencies and to refer them to a larger Bench for an authoritative decision. Hence this Full Bench was constituted.

48. On the distinction between Rules 2 and 3 of Order 17, C. P. C., as regards their applicability, and their consequences, and also the remedies available to the parties, Verma J. has very ably expressed With thoroughness the opinion formed by all of us, except Raina, J. I have nothing to add except a word about the basic difference in the approach. According to us, if Rule 2 applies because of non-appearance of a party, then, Rule 3 is out of the question. According to the contrary view, Rule 3 applies in case of a default described in that Rule, notwithstanding non-appearance of a party, and Rule 2 may also apply. To put it differently, accordingto our view, it is tirst to be seen whether Rule 2 applies; and, if it applies, to proceed under Rule 3 becomes out of the question. According to the contrary view, it has first to be seen whether Rule 3 applies, or simultaneously to be seen whether both the Rules apply.

49. In Manorama Devi v. Kanhaiyalal 1957 Jab LJ 268, there is no discussion about the distinction between Rules 2 and 3 of Order 17, in regard to their scope and operation. The ratio of that case is that where the Court passed an order by an express mention of Order 17, Rule 3. C. P. C. an appeal will lie. That was also the view taken in Gover-dhan v. Ganesh (ILR (1962) Madh Pra 766). Although in the latter case Naik, J. accepted that since adjournment was not on the application of the party which subsequently committed default, Rule 3 of Order 17 did not apply, yet, 'rightly or wrongly, the trial Court chose to exercise its jurisdiction under Rule 3 of Order 17 of the Code of Civil Procedure and the rights of the parties shall have to be regulated by what it actually did than by what it ought to have done'. Thus, both these cases are not relevant to the questions referred to this Full Bench.

50. It may be pointed out with respect that the illustration in paragraph 14 (para 38 in this report--Ed) of the opinion of Raina, J. overlooks that since the hearing was adjourned at the request of the defendant not the plaintiff, Rule 3 becomes inapplicable. The answer to the question posed in that illustration is that undoubtedly the Court acted within its jurisdiction and the decree is not a nullity; but it is not because of Order 17, Rule 3, but because the Court had inherent jurisdiction to proceed further to decide the suit. There is nothing in the whole of the Code of Civil Procedure, which debars the Court from deciding a case in favour of a party not present. (See conclusion (4) in Madarilal v. Jai Narayan (AIR 1972 Madh Pra 8) (supra).

51. On the question when appearance of counsel tantarnounts to appearance of the party, the following illustrations will be useful:

(i) The counsel is present merely to inform the Court that he has no instructions and will, therefore, not appear. This is mere intimation to the Court as a matter of courtesy, so that it may not wait for the counsel. Rule 2 will apply.

(ii) The counsel is present merely to inform the Court that the client court not meet him, and seeks adjournment. If the Court refuses adjournment, and the counselthen withdraws, this is also no appearance of the party. But in either of these cases (i) or (ii), when he makes an application under Order 9, the party has not only to show that there was sufficient cause for his non-appearance but he has also to show sufficient cause for his inability to instruct his counsel. For instance, he can show that he could not meet his counsel or otherwise send him instructions, by reason of some unforeseen happening, which the Court may consider sufficient;

(iii) Where the counsel appears and, for instance, makes an application for leave to amend the pleading, but after that application has been dealt with, and the counsel is called upon to examine or cross-examine a witness, at that stage, the counsel seeks adjournment, saying that he has no instructions regarding the evidence of the witness;

(iv) Likewise, if the counsel appears and examines or cross-examines one witness, but when the next witness is in the box, the counsel seeks adjournment, saying that he has no instructions about evidence of the other witnesses. If, in either of these cases (iii) and (iv), the Court refuses adjournment and the counsel withdraws for want of instructions, the counsel's appearance 'tant-amounts to party's appearance, so that the remedy under Order 9 becomes inapplicable. This was conclusion No. (7) in Madanlal v. Jai Narayan (AIR 1972 Madh Pra 8) (supra), which Verma, J. has correctly read, and I agree with him.

52. It is needlees to emphasise, as Verma, J. has already pointed out, that an application under Order 9 is not allowed just for the asking, or just because a remedy is provided under it. If there is an abuse of the provisions and there is a deliberate default, (or the cause shown is riot sufficient) the application will be dismissed. But, if there is sufficient cause shown within the meaning of Order 9, proper relief will be given.

ORDER OF THE COURT

53. In accordance with the majority opinion, the reference is answered per paragraph 23 of the opinion of Verma, J. (sic) (Dwivedi and Verma, JJ.?)

54. This case shall now go back to the appropriate Bench for decision on merits in accordance with the opinion given lay the majority (per paragraph 23 of the opinion of Verma, J. (sic)) on the questions referred for decision.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //