1. This is a point of practice. It appears that there was a maortgage suit which was decreed ex parte on 25th November 1925. The defendant who is the applicant before us to-day brought his application under Order 9, Rule 13, Civil P.C. on 5th January 1927 to have that ex-parte decree set aside and the suit restored for hearing. That application having been filed and registered on 12th February it appears from the order sheet the case was adjourned to 5th March 1927. In the meantime a petition supported; by an affidavit was made by the defendant asking for his examination on commission, but in the end the case was adjourned to 26th March for hearing and again to 30th April and the present applicant filed a petition with a medical certificate and again prayed for his examination on commission on the ground of illness. This time the application was granted on the term that the execution of the commission would not be a ground for any further adjournment and the parties were directed to come ready on the day fixed The commissioner finished his work on 30th April 1927, and on that day it was ordered
on both parties prayer for time let the case be adjourned to 7th May 1927 for hearing. Parties must come ready on that day.
2. On the day in question 7th May 1927 the position was this that the evidence taken on commission was recorded in the report, but the pleader who had been appearing for the defendant said that he had no instructions. Thereupon the learned Judge treated the matter as a case of default. He said:
The applicant does not appear on calls. His pleader states that he has no instructions in the case to-day. The opposite party is present. Let the case be dismissed for default with costs Rs. 8.
3. Now, the learned advocate for the petitioner contends before us that that course was improper and that what should have been done was this that evidence taken on commission together with any other evidence which the plaintiff might adduce should have been considered and1 the case should have been decided on its merits though in the absence of the defendant. That question turns upon two other questions the first is whether or not the case before us in the events which happened was governed by Rule 2, Order 17 of the Code or by Rule 3. On that question it seems to me that the case is within Rule 2. It is quite true that in the order as recorded it appears that the adjournment was made on the application of both parties. It is quite true that there is that notice that parties would get no further adjournment in the words parties must come ready on that day. Still I do not think that j that is what is contemplated by the terms of Rule 3. Rule 2 begins by:
where on any day to which the hearing of the-suit is adjourned
(it does not say at whose instance it is adjourned)
the parties or any of them fail to appear:
4. Rule 3 says:
Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit.
5. It seems to me that default of appearance in a case of general adjournment before hearing is within Rule 2, and that Rule 3 is directed to a case where a party is definitely given time in order that he may take a certain Step which it is necessary for him to take if he is to prosecute his case, and fails to take that step.
6. However that may be, a further question arises in this case whether the deposition on commission was evidence on the record of the Court in the sense that the Court was under an obligation to read it and to decide the case upon it even if there was no appearance at the hearing of the defendant. On that question we have been referred to the case of Dhanu Ram v. Murli Mahto (1909) 36 Cal. 566 where it is said that is not the practice in the mofussil to make a formal tender of the evidence taken on commission. It seems to me, however, that for the purpose of the present question before us it is necessary to look somewhat accurately on what is said by the Code and in that connexion the language Order 26, Rule 8, which is in the form of Section 390 of the previous Code must be regarded. Rule 8 says that evidence taken under a commission shall not be read as evidence in the suit without the consent of the party against whom the same is offered unless certain facts are present, for example, the person who gave the evidence is beyond the jurisdiction of the Court or the Court in its discretion dispenses with the proof of any of the circumstances and authorizes the evidence to be read notwithstanding proof that the cause for taking such evidence by commission has ceased at the time of reading the same, so that, before the evidence taken on commission can be read, the Court has either to be satisfied by proof of certain facts or to be satisfied that the case is such that it should dispense with the proof of those facts. It seems to me that the case Dhanu Ram v. Murli (1909) 36 Cal. 566 is open to some comment as regards a certain part of the reasoning in the judgment of the learned Judges. It is there said:
Where, therefore, as in the case before us, the circumstances mentioned in Section 390 which would exclude the deposition from being read as evidence in the suit do not exist, there is no reason why the deposition should be formally tendered before it can be treated as evidence in the cause.
7. In that passage the learned Judges seem to have inverted the character of Section 390 to which they were referring. In that section it is not laid down that certain circumstances shall exclude the deposition from being read as evidence. That section says that unless with the consent of the other party a commission shall not be read as evidence unless there is either proof of certain circumstances 'which would make it evidence1 or the Court gives dispensation from such proof, lam not disposed at the moment to make any observation as to what the practice in mofussil Courts may be for any other purpose; but reading Order 26, Rule 8, and Order 17, Section 3 as they stand for the purpose of giving a construction to the Code, I am not satisfied that even in a case which is otherwise within Order 17, Rule 3, it would be right to say that the Court is obliged to dispose of the case by looking at the evidence upon commission. In my judgment, the Court in this case has adopted the right practice and this Rule must be discharged with costs hearing fee-one gold mohur.
8. I agree.