Anna Chandy, J.
1. This Appeal is by the defendants against the order dismissing their application under Order IX Rule 13, C. P. C. to have the ex pane decree passed against them set aside. The plaintiffs and the defendants are members of an undivided Naif larwad and the suit was for partition of and for recovery of the plaintitfs share in them. The appellants contested the suit on the ground that certain items of the schedule properties were not liable to be partitioned. They also contended that the plaintiffs were entitled only to a lesser share than what [hey claimed. Issues were raised and the plaintiff was examined on 2-9-1959. The case was then ad-jcurned to 22-9-1959 for the defendants' evidence. it was further adjourned to 21-10-1959 on the defendants' application. On 21-10-1959 the defendants were not present and there was no application for time on their behalf. Thereupon the arguments of the plaintiffs' counsel were heard and the case was adjourned to 23-10-1959 for disposal and was disposed of on that day. On 6-11-1959 an application under Order 9 Rule 13 was filed by defendants 6 and 7. The application was supported by an affidavit by Govinda Menon the husband of the 6th defendant and the father of the 7th defendant. It was stated therein that on the 21st both the defendants were down with an attack of fever which prevented them from appearing in court or giving necessary instructions to the counsel to apply for time and also to produce the records in support of their contention. The person who fifed the affidavit gave evidence in support of the allegation and produced a medical certificate to that effect. The certificate showed that the 6th defendant and her husband the guardian of the minor 7th defendant were both laid up with severe influenza during the latter half of October 1959. Though the witness was cross-examined nothing has been brought out in his evidence to doubt the truth of the facts spoken to by him. It is also seen that subsequently the 6th defendant died of the same disease.
2. The application for restoration was dismissed on the ground that as disposal of the case was under Order 17 Rule 3 C. P. C. an application under Order 1 Rule 13 was not sustainable and also because the petitioners had not proved that they were prevented by sufficient cause from appearing in court on 21-10-1959.
3. We do not feel that the finding that the petitioners have not made out sufficient cause for their absence on the date of hearing is correct. The petitioner has given acceptable evidence and there was no evidence to the contrary. The certificate which is definite that the petitioners were having a severe attack of influenza during the latter half of October cannot be said to be vague or indefinite as observed by the learned Judge. The learned counsel for the respondents sought to support the order only on the ground that the disposal of the case is under Order 17 Rule 3 and the remedy of the petitioners to vacate the decree is only by way of an appeal and frankly conceded that if that position is not accepted the appeal has only to be et-lowed.
4. Thus the only question arising for determination in this appeal is whether the disposal of the case on 21-10-1959 is under Order 17 Rule 3 or Order 17 Rule 2 as contended by the revision petitioner. This is a case in which time has been granted by the court to the defendant to produce his evidence and the defendant not only failed to produce any evidence, but both the defendants and their counsel failed to appear in court. The question to be decided is whether in such a case the disposal of the case should be on merits as contemplated under Rule 3 or one under Order 9 for non-appearance of the party. It is not a task free from difficulty and is a question on which there is difference of opinion between the several High Courts. To decide whether a particular case comes within the scope of Rule 2 or 3 the two provisions have to be read together. Order 17 Rule 2 says that:
'Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed, in that behalf by Order 9 or make such other order as it thinks fit', and Rule 3 enjoins that:
'Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, 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'.
When time has been granted for the performance of an act and the party fails to perform that act, Rule 3 no doubt enables the court notwithstanding such default to proceed to decide the suit forthwith, but that does not mean that where the parties fail to appear the operation of the more specific provision dealing with the non-appearance of parties contained in Rule 2 is excluded. It appears to us that where the default made is one specified in Rule 3, the court should proceed under that provision and dispose of a case on the merits, but where the default consists in non-appearance it is Rule 2 which deals with such a case specifically that applies. This is the view the Madras High Court has been consistently taking Ellammal v. Karuppan Chetti, AIR 1936 Mad 625; D. L. G. and R. Oil Working Co. Mangalagiri v. Yellappa Chetti, AIR 1952 Mad 160 and Gurusanlhayya v. Veerayya, AIR 1952 Mad 825. In AIR 1952 Mud 825 it is clearly stated that:
'The distinction between Order 17, Rules 2 and 3 is that in order that Order 17. Rule 2 should apply, a party or his pleader should not be present in Court, whereas in the case of Order 17 Rule 3, even if the party or his pleader is present in Court, if there is a failure to produce evidence, to cause the attendance of witnesses or to perform any other act necessary to the further progress of the suit Order 17 Rule 3 applies.'
We are in respectful agreement with that view. In a recent Full Bench decision of the Andhra Pradesh High Court reported in M. Agaiah v. Mohd. Abdul Kareem, AIR 1961 Andh Pra 201 it was held:
'Where a party who is granted time to perform some act not only fails to do it but is also absent on the date to which the hearing is adjourned it is Rule 2 and not Rule 3 that applies. Rule 3 comes into operation only where the parties are present and are prepared to proceed with the further hearing of the case but default of the kind mentioned in that rule is committed.'
5. Rule 3 is permissive and not mandatory as is shown by the words 'the Court may proceed to decide the suit forthwith' and stringent provisions thereof should not be applied unless the faces do not admit of the application of any other provision of the Code. If the facts of the case make the provisions of Rule 2 applicable the court should act under that rule even though such facts come within the operation of Rule 3 as well. As observed by one of us in Kunjannam v. Isaac, 1961 Ker LT 653 'the power conferred on the court under Order 17 Rule 3 is a very drastic power and it restricts very greatly the unsuccessful party's remedy for redress and should be used only in exceptional cases'. Where the facts of the case show that it comes under Rule 2 the mere fact that court remarks while passing orders that it is acting under Rule 3 will not make the order one under Rule 3 and the appellate court has to rectify the error.
6. We therefore hold that though the judgment purports to be one written on the availableevidence in the case as contemplated in Order 17Rule 3, the disposal is virtually one under Order 17Rule 2. The order appealed against is thereforeset aside and the petition filed by the defendantsfor restoration of the suit is allowed. The learnedSubordinate Judge will restore the suit to the fileand dispose it of as expeditiouly as possible. Wemake no order as to costs.