B. P. Beri, J.
1. This is a reference by a learned single Judge of this Court to resolve a conflict relating to the interpretation and consequent applicability of Rules 2 and 3 of Order XVII of the Code of Civil Procedure which arises for certain decisions of this Court.
2. Before we formulate the question for answer it would be convenient to briefly notice the facts of the case before us. A suit for recovery of money was instituted before the Munsiff, Bikaner by a plaint dated 23rd May, 1955, on the basis of a deed of agreement concerning the sale and delivery of a lorry. The defendants filed a written statement dated 22nd February, 1956, denying the execution of the deed and the liability arising therefrom. The Munsiff Bikaner on 9th August, 1957. framed issues relating to (a) the execution of the deed and want of consideration; (b) the fac-tum of delivery of lorry; (c) the penal character of the rate of interest claimed and (d) the relief. The suit stood fixed for the plaintiff's evidence on 19th September, 1957, on which date the plaintiff obtained an adjournment on payment of costs and the case was fixed for 19th October, 1957, on which date of hearing the counsel for the parties were present but the plaintiff and his witnesses were absent. The plaintiff's pleader reported no instructions. Cost was not paid. Plaintiff's evidence was closed. Defendants led no evidence and the arguments of their counsel were heard and the suit was dismissed.
3. The learned single Judge in his order of reference has made pointed reference to two decisions of this Court for consideration. The first is Ram Karan v. Radha Mohan, ILR (1953) 3 Raj 798 and another is Shantilal v. State, ILR (1957) 7 Raj 760 : (AIR 1958 Raj 7). In Ram Karan's case ILR (1953) 3 Raj 798 the suit was fixed for the plaintiff's evidence and was adjourned at his request. On the adjourned date the plaintiff and his witnesses were absent and the suit was dismissed under Order XVII Rule 3 Civil Procedure Code. Bapna and Sharma, JJ., held that as there was no material on the record, no decision on merits as envisaged by Order, XX Rule 4 of the Code of Civil Procedure was possible and, therefore, the order of dismissal should be deemed to have been passed under Order XVII Rule 2 Civil Procedure Code.
In Shantilal's case, ILR (1957) 7 Raj 760 : (AIR 1958 Raj 7) after framing of the issues the suit stood fixed for the plaintiff's evidence. At the plaintiff's request it was adjourned three times. The plaintiff's statement was recorded and at his request again the suit was adjourned on payment of costs. On the adjourned date the plaintiff did not appear. The District Judge, before whom thesuit was pending, proceeded under Order XVII Rule 3 Civil Procedure Code and dismissed the suit. It was urged in appeal before this Court that the District Judge had no jurisdiction to proceed under Order XVII Rule 3 Civil Procedure Code. Wanchoo, C. J., as he then was, and one of us who decided the case, held that the District Judge was right in proceeding under Order XVII Rule 3 Civil Procedure Code. Jt was also observed that,
'... ... though we express with respect somedoubt about the view that there must be materials on record before a Court can proceed under Order XVII Rule 3 Civil Procedure Code we need not express any firm opinion on the point in the circumstances of this case. In this case there were some materials and the Court looked into these materials before dismissing the suit under Order XVII Rule 3 Civil Procedure Code.'
4. Before we notice the persisting divergence between the various High Courts of India regarding the applicability of Order XVII Rule 2 or Rule 3 Civil Procedure Code we might also notice a few other cases of this Court which have some bearing on the subject.
5. The first reported case on the subject is Amarsingh v. Mst. Nand Kanwar, 1953 Raj LW 365. In this suit for compulsory registration issues were framed and preliminary issues were decided. Negotiations for compromise were in progress and an adjournment was obtained to conclude the same. The plaintiff undertook to produce his own witnesses but on the adjourned date of hearing no evidence on behalf of the plaintiff was produced and the suit was dismissed under Order XVII Rule 3 Civil Procedure Code because the plaintiff failed to produce his evidence. Wanchoo, C. J., and Modi, J., held that although there was no evidence before the Court to come to a decision on merits but having regard to the fact that the burden was on the plaintiff which he failed to discharge the Court could and did rightly dismiss the suit under Order XVII Rule 3 Civil Procedure Code.
Ganga Das v. Mst. Gopli, ILR (1960) 10 Raj 748 : (AIR 1960 Raj 245), to which, one of us was a party, was a suit which was fixed for plaintiffs evidence on a particular date. The process issued for the attendance of the plaintiff's witnesses was not returned to the Court and the case was adjourned. On the adjourned hearing the plaintiff and his counsel were absent. In the first instance the Court proceeded under Order XVII Rule 2 adding, howeyer, that the suit will be disposed of early on merits. The defendant moved an application that, his evidence may be recorded. The Court granted that application and recorded the statement of the defendant and dismissed the suit. On the same date the learned counsel for the plaintiff presented an application for restora-tion of the suit. It was contested by the defendant on the ground that it was not maintainable as the Court had proceeded to dispose of the case under Rule 3 and not under Order XVII Rule 2 Civil Procedure Code. This objection was turned down and the restoration application was allowed. The defendant came up in revision to this Court and it was held that it was competent for theplaintiff to move an application and it was rightly allowed by the trial Court. It was also observed that it was open to a Court to proceed under Rule 3 eyen if the party to whom time was granted to produce evidence or to perform any other act necessary for the further progress of the suit was absent. But it was discretionary for the Court; to apply Rule 2 even in such circumstances.
6. Chronogically stated the view taken by this Court in regard to the applicability of Order XVII Rules 2 and 3 is that in Amarsingh's case, 1953 Raj LW 365 it has been held that Rule 3 was applicable even if there was no material on record and a suit could be decided on considerations of the burden of proof; in Ram Karan's case, ILR (1953) 3 Raj 798. which incidentally has not taken any notice of Amarsingh's case, 1953 Raj LW 365, it has been held that existence of material was a condition precedent for the applicability of Rule 3; in Shantilal's case, ILR (1957) 7 Raj 760 : (AIR 1958 Raj 7) the correctness of the view taken in Ramkaran's case, ILR (1953) 3 Raj 798 has been doubted; and in Ganga Das's case, ILR (1960) 10 Raj 748 :. (AIR 1960 Raj 245) no definite opinion has been expressed on the question of the existence of material or otherwise but the matter has been largely left to the discretion of the trial Court.
7. The decisions of other High Courts on the question of the applicability of Rules 2 and 3 of Order XVII are not uniform. There are two_ clearly divergent lines that haye been adopted. The one is led by a Full Bench decision of the Madras High Court, which we might conveniently call the Madras view, and the other is led by the Calcutta High Court which we might refer to as the Calcutta view. Some of the important cases adopting these divergent lines may also be noticed.
8. In Prativadi Bhayankaram Pichamma v. K. Sreeramulu, AIR 1918 Mad 143 (FB), the Full Bench of the Madras High Court has held that Rules 2 and 3 of Order XVII of the Code, of Civil Procedure are mutually exclusive. Where the conditions of Rule 2 are fulfilled even if the circumstances envisaged by Rule 3 are existent and applicable, Rule 2 should be applied. The reasons which persuaded the learned Judges to make this preference are that when a party has failed both to appear as well as to produce evidence or to perform an act for which time was granted to it, it will be unjust in the party's absence to assume that its failure to produce evidence or to perform the act was unjustified he being absent and, therefore, unable to offer any explanation for its failure to produce evidence or to do acts in furtherance of the progress of the suit. Equity demanded that the Court should proceed under Order XVII Rule 2 Civil Procedure Code treating the case to be one of mere absence. Wallis, C. J., a member of this Full Bench of the Madras High Court, however, expressed a different view that Rules 2 and 3 were not mutually exclusive.
M. Agaiah v. Mohd. Abdul Kareem, AIR 1961 Andh Pra 201 is a Full Bench decision of the Andhra Pradesh High Court which has adopted the view taken by the Madras High Court in Pra-tivadi's case, AIR 1918 Mad 143(2) (FB). The Andhra Pradesh High Court has not referred to the decisions of other High Courts which have takena contrary view. The High Court of Rangoon in Ma Hla Nyun v. Ma, Aye Myint, AIR 1937 Rang 437, the High Court of Nagpur in Bhioraj Jethmal v. Janardhan Nagorao; AIR 1933 Nag 370 and Judicial Commissioner's Court of Bhopal in Hashmat Rai v. Lal Chand, AIR 1952 Bhopal 43 have adopted the same view as the High Court of Madras.
9. The other view taken by the Calcutta High Court in Mariannissa v. Ramkalpa Gorain, ILR 34 Cal 235 considered the relationship between Section 157 and 158 of the Code of Civil Procedure, 1882, which correspond to Order XVII rules 2 and 3 respectively of the Code of Civil Procedure of 1908 and expressed the view that the existence of material was necessary for the application of Section 158 which corresponds to Rule 3 of Order XVII. In this case issues were framed and after various adjournments the case came up for hearing on 10th March, 1905. The plaintiff had asked for and obtained process for witnesses but as they did not appear on the date fixed for trial the plaintiff prayed for the issue of warrant of arrest for one of them. This application was refused. The pleader for the plaintiff thereupon intimated to the Court that he had no further instructions to appear in the case and the subordinate Judge dismissed the suit, for want of prosecution. When the plaintiff made an application to set aside the order of dismissal under Section 102 (Order IX Rule 8) the defendant took a preliminary objection that the suit bad been dismissed not under Section 102 but under Section 158 (Order XVII Rule 3) and consequently the remedy of the plaintiff was by way of review and not for restoration. The plaintiff eventually 'appealed to the High Court.
The learned Judges obseryed,--
'It is obvious that the scope of Section 157 is quite distinct from that of Section 158. Section 158 appears to contemplate a case in which the Court has materials before it to enable it to proceed to a decision of the suit. ............ whatSection 158 provides is, that the mere fact of a party making default in the performance of what he was directed to would not lead to the dismissal of the plaintiff's suit, if he was the party in default, or the decreeing of the claim against the defendant, if the defendant was the person, who made the default; the words 'notwithstanding su'ch default' clearly imply that the Court is to proceed with the disposal of the suit in spite of the default, upon such materials as are before it. Section 157, on the other hand, speaks of the disposal of the suit, and undoubtedly includes cases in which there might not be any materials before the Court to enable it to pronounce a decision on the merits, for instance, if the event contemplated in Sections 97, 98, 99 Clause (a) and 102 happens, although, if the contingency mentioned in Section 100, Clause (a) happens, there would be materials before the Court, and a decision on the merits. ............'
10. Another case of the Calcutta High Court is Brojendra Nath v. Promatha Bhusan, AIR 1933 Cal 412. One of the issues in the suit was a question of jurisdiction. On the date fixed the plaintiff was absent 'but the Court nevertheless return-ed the plaint to be presented to a proper Court. The question which arose was whether Rule 2 or Rule 3 of Order XVII applied. The learned Judges held that before Rule 3 could apply two conditions must co-exist, namely, (a) that an adjournment must have been at the instance of a party; and (b) that there must be material on record for the Court to proceed to decide the suit. The presence of one without another does not justify the application of Rule 3 to such a case.
11. A Full Bench decision of the High Court of Bombay in Basalingappa Kushappa v. Shi-dramappa Irappa, AIR 1943 Bom 321 (FB) considered a similar question. A decree was passed by the trial Court on the evidence led by the plaintiff. The defendant and his witnesses were absent and the defendant's counsel had withdrawn from the suit after making an unsuccessful application for adjournment. The question which arose was whether the decree was an ex parte decree or a decree on merits. The learned Judges adopted the view taken in Mariannissa's case, ILR 34 Cal 235 and held that the view that Rules 2 and 3 are in direct conflict with each other was incorrect and even in a case of double default rule 2 could apply.
12. In Ghulam Hyder Khan v. Tekchand, AIR 1919 Sind 89 of the Judicial Commissioner's Court of Sind the circumstances were that one of the defendants could not be seryed as the plaintiff was unable to furnish his whereabouts. Several adjournments were granted to the plaintiff and on the last adjournment hearing both the plaintiff and his counsel were absent. The suit was dismissed. The question arose whether Order XVII Rule 2 or Rule 3 applied. The opinion expressed was that Rule 2 should apply because the conditions laid down by Rule 2 and Rule 3 coincided and Rule 3 being restrictive of the future remedies of an absent-party should not be preferred. Another case of Sind is Tekchand v. Kalusing Manju-sing, AIR 1943 Sind 94, where the learned Judges of the Chief Court of Sind did not accept the view of the Full Bench Madras case and expressed the opinion that the provisions of Order XVII Rule 3 being stringent should be applied in exceptional cases and unsuccessful party's future remedies were not to be lightly restricted. Therefore, it was preferable that the Court should exercise its discretion by applying Rule 2.
13. In Union of India v. Mangilal Jain, AIR 1959 Pat 342 of the Patna High Court the defendant's two witnesses were ill and an adjournment was sought by the defendant but it was refused by the trial Court. The suit was decided ex parte. The learned Judges held that a default on the part of the defendant did not necessarily mean that the suit must be decided on merits under Order XVII Rule 3 and the discretion was left in the Court even in cases of the default under the provisions of Order XVII Rule 3 either to proceed to decide the case on merits or to give an ex parte decree in accordance with the provisions of Order XVII Rule 3 of the Code of Civil Procedure.
14. In Mst. Gigi Agarwallini v. Baleswar Tewari, AIR 1961 Assam 99, which was a suit for eviction, plaintiff's five witnesses were examined and cross-examined. The defendant prayed for anadjournment, which was allowed. On the ad-journed date the plaintiff was ready but the de-fendant again sought an adjournment which was refused. The defendant's counsel withdrew. The Court proceeded under Order XVII Rule 3 and passed a decree for eviction. The learned Chief Justice of the Assam High Court who decided the case dissented from the view taken in Prativadi's case, AIR 1918 Mad 143(2) (FB) of the Madras High Court and adopted the view taken by the Calcutta High Court in Brojendra Nath's case, AIR 1933 Cal 412 for reasons given in the Calcutta decision.
15. In Ram Ratan v. Sughad Singh, AIR 1952 Madh-B 46 a case before the High Court of Madhya Bharat the situation was that issues were framed but the plaintiff's witnesses were not examined. The case was under the Gwalior Civil Procedure Code, Sections 159 and 160, which corresponded to Order XVII Rules 2 and 3 of the Indian Civil Procedure Code respectively. Relying on the Sind cases the learned Judge held that as there was no material before the Court to enable it to pronounce a decision on merits, the orderof dismissal should be construed to be one madeunder Order XVII Rule 2 Civil Procedure Code.
16. The learned Judges of the High Court of Lahore in Jhahda Singh v. Sadiq Mahomed, AIR 1924 Lah 545 dissented from the view taken by the majority in Prativadi's case, AIR 1918 Mad 143 (2) (FB) of the Madras High Court and held that the existence of material was necessary for the applicability of Order XVII Rule 3 Civil Procedure Code.
16a. We have not taken notice of the cases decided by the Allahabad High Court as the said Court has made ah amendment to Order XVII Rules 2 and 3 and, therefore, the decisions of that Court 'have been influenced by the amendment.
17. On a survey of the aforesaid decisions, broadly speaking, the Madras view is that if a party was absent Order XVII Rule 2 alone appliedand not Rule 3. The Calcutta view is that in case an adjournment was granted to a party for production of evidence or doing of any other act necessary for the progress of a suit and the partywas absent it was a case of double default but Order XVII Rule 3 would not apply unless therewas material on record enabling the Court to decide the suit on merits. None of the decided cases of the Rajasthan High Court has adopted the Madras view. In fact that view has not been accepted in Ramkaran's case, ILR (1953) 3 Raj 798. Three views however, have been expressed by this Court which we have already noticed earlier. The question which arises for consideration, therefore, may now be formulated :
If a plaintiff makes default in producing evidence and also absents himself can a suit be decided under Order XVII Rule 3? Order XVII Rules 2 and 3 read as follows :-
'Rule 2 -- 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 otherorder as it thinks fit.'
'Rule3.-- Where any party to a suit to whomtime has been granted fails to produce his evi-dence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith.'
18. Rule 2 comers discretion in the Court, in the event of a party being absent, either to dispose of the suit in one of the modes directed by Order 9 or to make such other order as it thinks fit. Rule 3, however, envisages a situation where a party to whom time has been granted for the production of evidence or for the performance of any other act necessary to the further progress of the suit and such party fails to produce the evidence or to perform the act for which time had been allowed the Court may. notwithstanding such default proceed to decide the suit forthwith. When a party to whom time has been granted for the production of evidence or for the performance of any other act also does not appear it is clearly a case of double default. Not only the party has failed to do that for which time was granted to it but has also failed to appear, In our opinion this double default does not take away the case from the purview of Order XVII Rule 3. We are unable to agree with the interpretation given in the Full Bench Madras case that Rules 2 and 3 are mutually exclusive. There can be cases as the one before us, where time was granted to a party to produce evidence but the party not only failed to produce evidence but also absented itself and it cannot be said that Order XVII Rule 3 cannot apply to such a case.
19. In a long series of decisions adopting the yiew of the Calcutta High Court for diverse reasons it has been held that the existence of material is necessary for deciding a suit under Order XVII Rule 3. The language of the statute does not expressly indicate the existence of material as an essential condition for its application. This interpretation has been influenced apparently by the word 'decide' to mean decide on merits. In Ramkaran's case, ILR (1953) 3 Raj 798 the learned Judges of this Court felt persuaded by the provi-sions of Order XX Rule 4 of the Code of Civil Procedure to hold that the existence of material was necessary and because only pleadings and issues were on record they opined that the dismissal should be construed to be one under Order XVII Rule 2. On the other hand in Amarsingh's case, 1953 Raj LW 365, the learned Judges were of the view that where the plaintiff failed to discharge the burden placed on him in the suit, the logical conclusion was that the suit should be dismissed whether material existed or not. No decision has attempted to indicate the exact kind of quantum of material which is requisite for the operation of Order XVII Rule 3. The difficulty of such a task is easy to appreciate.
In the wide varieties of cases and complexities of situation formulation of universal rules, is a task not easy of attainment. The indications,' however, are as in Ramkaran's case, ILR (1953) 3 Raj 798 that the material may mean 'evidence' on record. The obvious question which arises next is whether can absence of evidence altogether exclude the applicability of Order XVII Rule 3? It is difficult to lay down such a, wide proposition. Theintention of Order XVII Rule 3 as has been noticed is that a party seeks time to produce evidence or do something to further the progress of a suit and makes default in doing either, a Court may decide the suit forthwith. To our mind, it is too wide a proposition to lay that in no case where evidence has not been led Rule 3 would be inapplicable. The test should be whether the Court before whom the suit is pending on the basis of material before it is in a position to decide the suit forthwith, the default of a party notwithstanding. The pleadings, of the parties and issues arising therefrom may in some cases enable a Court to decide the suit forthwith.
Suppose in a suit on a promissory note the execution of which has not been denied by the defendant and the defendant pleads want of consideration seeking time to produce evidence. Time is allowed but he makes default in producing evidence. Can the suit be not decided in view of the legal presumption contained in Section 118 of the Negotiable Instruments Act? In a converse case the defendant denies execution and the plain-tiff is granted time to prove execution and he makes default. Can the suit be not decided on the grqund of the default made by the plaintiff in discharging the burden of proof placed on him? In the first illustration it can perhaps be said that the promissory note execution whereof has been admitted constitutes evidence and there is mate-rial on record to attract the applicability of Rule 3. In the second illustration; however, the execution not having been admitted there is obviously no evidence. The plaintiff fails to discharge his duty. Can we say that the suit should be disposed of in accordance with Order IX as per Order XVII Rule 2? The answer is plainly in the negative for the situations envisaged under Order IX are different than the one we have in the illustration. Can it be said that the Court may pass such other order as it thinks fit as laid down in Rule 2 of Order 17? Such an order can be no other than to adjourn the case for plaintiff's absence in a situation such as this.
Therefore, if the plaintiff fails to discharge the burden placed on him in view of the pleadings and consequent issues despite the opportunity afforded to him the case cannot be adjourned for his evidence ad infinitum and the Court at some stage or the other has to decide it for want of evidence. Even in a contested suit issues are sometimes decided for want of evidence and so can the whole suit. Therefore, in our opinion the existence of material does not necessarily mean existence of evidence. If a suit can be decided despite the lack of evidence on the material before it Order XVII Rule 3 can be said to govern the case. Material on record need not be given a technical meaning and equated to evidence.
The circumstances of each case will regulate the exercise of discretion vested in a Court. It is for the Court to exercise its discretion and to indicate without ambiguity whether it is exercising its powers under Order XVII Rule 3 or not. It is correct that the application, of Rule 3 restricts the future remedies of a defaulting party and is a stringent provision, and, therefore, it should be applied with circumspect caution and judicial restraint ,Ramkaran's case, ILR (1953) 3Raj 798 therefore, has to be read with the aforesaid modification. No exception can, however, be taken to the reasoning adopted in Amarsing's case, 1953 Raj LW 365.
20. Now in the case before us the learned-Munsiff wrote out a judgment and decided all the issues and dismissed the suit under Order XVII Rule 3. It cannot be said that he exercised his jurisdiction with material irregularity. Whatever view another Munsff may have taken the Munsiff of Bikaner cannot be said to have exercised his jurisdiction with material irregularity and, therefore, no interference in this revision is called for.
21. This revision application, therefore, failsand is dismissed with costs.