Mufti Baha-Ud-Din Farooqi, C.J.
1. This revision is directed against an order of the Courts below dismissing the plaintiffs application under Order 9, Rule 13, C. P. C. In the trial Court, the issues were framed on 11-8-1977 in presence of the parties and their counsel and the plaintiff was asked to lead his evidence and produce the same on 15-9-1977. The plaintiff remained absent on, that date and did not also produce any evidence. The case was adjourned to 17-9-1977 for the appearance of the plaintiff and the production of the evidence by him. The plaintiff, however, again remained absent and failed to produce the evidence. The trial Court passed an order dismissing the suit as not proved. The plaintiff moved an application for restoration of the suit under Order 9, Rule 13. The trial Court dissmissed the application holding that the same was not maintainable as the order was one under Order 17, Rule 3. The plaintiff preferred an appeal which came to be heard by the Addl. Dist. Judge, Srinagar. He agreed with the view expressed by the trial Court and dismissed the appeal. Hence this revision.
2. Order 17, Rules 2 and 3 provided as under:--
'Rule 2. Where, on any day to which the Shearing 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.'
'Rule 3. Where any party' to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other, act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default proceed to decide the suit forthwith.'
3. Clearly Rule 2 applies where a party to a suit fails to appear on the date to which the hearing has been adjourned. In that event the Court has got the option either to proceed under Order 9 or make such order as it thinks fit. On the other hand, Rule 3 applies where a party obtains time 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. But does not do so within the time allowed by the Court. In such a situation the Court is at liberty to proceed to decide the suit forthwith. Such a default can however be assumed by the Court only where the party is present and fails to give any reason to the satisfaction of the Court for not having done what it was directed to do. Accordingly where a default takes place within the meaning of both Rule 2 and Rule 3, the law contemplates that Rule 2 and not Rule 3 should be applied where it is coupled with the default of appearance of the concerned party and that, even where Rule 3 has been mentioned, the order should be construed as one passed under Rule 2. In this view I am fortified by the judgments of the Madhya Pradesh High Court reported in AIR 1972 Madh Pra 8 and AIR 1973 Madh Pra 179.
4. In AIR 1972 Madh Pra 8 (supra), the following two questions were referred for decision to a Division Bench:
1. Whether it is open to the Court to proceed under Order 17, Rule 3, C. P. C. in the absence of & party
2. Where the Court proceeds under Order 17, Rule 3 in the absence of a party and the conditions laid down in the said Rule are fulfilled, whether the order can still be construed one under Order 17, Rule 2, merely on the ground that it was not expedient for the Court to do so ?'
The Bench considered the matter at length and answered the aforesaid question; as follows (at p. 12):--
'1. It is not open to the Court to proceed under Order 17, Rule 3, C. P. C, in the absence of a party. In case of non-appearance of a party the matter must be dealt with under Order 17, Rule 2, C. P. C. However, under Rule 2 the Court has widest possible discretion to dispose of the suit in one of the modes directed by Order 9, C. P. C. or to make such other order as it thinks fit but not to dismiss the suit on merits. The discretion has to be exercised on sound judicial principles and it will be subject to scrutiny by the superior Court.
2. Where, the Court proceeds under Order 17, Rule 3, in the absence of a party, although the other conditions laid down in the said Rule are fulfilled, the order must be construed as one under Order 17, Rule 2, not on the ground that it was not expedient for the Court to do so, but on the ground that the Court had no power to do so.'
5. Following this decision it was held in the later case reported as AIR 1973 Madh Pra 179 that even if the order mentioned Order 17, Rule 3, it must, in the eye of law be read as one under Order 17, Rule 2, where the default as mentioned in Rule 3 is coupled with the non-appearance of the concerned party. In that case, after the plaintiff's evidence was over, the defendant was asked to produce his evidence on Dec. 17, 1970. The defendant did not produce any evidence on that date but sought an adjournment which was opposed by the plaintiff. It was allowed on the condition that the defendant would pay Rs. 25/- as costs. On Feb. 4, 1971 which was the date fixed for the defendant's evidence, the plaintiff was present but the defendant did not appear. His counsel reported no instructions. The trial Court then proceeded under Order 17, Rule 3, C. P. C. and pronounced the judgment then and there. The suit of the plaintiff was decreed. The defendant moved an application under Order 9, Rule 13 for setting aside the ex parte decree. The plaintiff opposed the application on the ground that an application under Order 9, Rule 13 was not tenable inasmuch as the Court had proceeded under Order 17, R, 3. The Court upheld the objection and dismissed the application. In revision, the High Court, following the earlier decision in AIR 1972 Madh Pra 8, allowed the application observing as under :--
'In the present case the defendant did not appear on the date of hearing and his counsel appeared merely to inform the Court that he had no instructions so that the Court would not wait for him; it was not as if the counsel sought an adjournment and then withdrew from the case after it was refused. This being the position, the trial Court must be deemed to have proceeded under Order 17, Rule 2, Civil P. C. Even if it mentioned Order 17, Rule 3 in its order, it must, in the eye of law be read as one under Order 17, Rule 2. Therefore following the above Division Bench decision, it must be held that the ex parte decree passed by the trial Court was under Order 17, Rule 2, C. P. C., and not under Rule 3. Therefore, the petitioner's application under Order 9, Rule 13, C. P. C. was competent.'
6. For a contrary view reliance was placed on behalf of the respondent on the decisions reported in 1980 Kash LJ 136 and AIR 1977 Him Pra 58. The first case arose in this Court. In that case the trial Court ordered the plaintiff to produce evidence. Despite repeated opportunities the plaintiff failed to produce, her evidence and eventually remained absent on 21-4-1977 which was the date fixed for the production of the evidence by her. The Court dismissed the suit. An application for restoration of the suit was dismissed on the ground that the order of dismissal was one under Order 17, Rule 3. In? revision, a learned single Judge of this Court set aside the order dismissing the application and held that the application was competent inasmuch as the order of dismissal must be construed to be one under Rule 2 and not under Rule 3 of Order 17. Obviously this case does not help the respondents.
7. In the case, reported in AIR 1977 Him Pra 58, the factual position was that after the plaintiffs evidence was over, the defendant took time for producing his evidence. The case was adjourned several times to enable the defendant to produce his evidence and! the last date fixed for the purpose was 8-12-1971. On that date, the counsel for the defendant stated What he had no instructions. The Court passed the following order:--
'I proceed ex parte against the defendant as he is not taking interest at all in this case. To come up for arguments on 31-12-1971. After the arguments were heard a judgment was pronounced on 19-1-1972. The evidence was considered on merits on each issue and the suit was decreed.'
An application for setting aside the ex parte decree moved by the defendant under Order 9 Rule 13 was dismissed on the ground that it was incompetent as the order was one made under Order 17, Rule 3. In revision, the High Court upheld the order. The material portion of the judgment reads (at p. 60):
'The distinction under Rule 2 and Rule 3 of Order 17 is well marked. Rule 2 applies when the suit is adjourned for any date and a party fails to appear on that date. In that contingency the Court may either proceed under Order 9 or make such other order as it thinks fit. But when a party obtains time to produce evidence or to cause the attendance of his witnesses or to perform any other act necessary to the further progress of the suit, for which time has been allowed and does not do so, the Court may notwithstanding such default, proceed to decide the suit forthwith. That decision cannot but be on merit. The form of the order by itself will not go to decide the question. It is the substance of the order and the intention with which the Court proceeded on that date, and in fact how it proceeded, these would be relevant factors to hold if the decision was on merit under Rule 3. It is totally immaterial that the Court mentions the expression 'ex parte' or even mentions Order 17, Rule 3 because that would not be a deciding factor. How the Court intended to proceed, that would be essential to prove in order to bring the case under Rule 2 or under Rule 3 of Order 17. In the instant case no doubt the Court used the expression 'ex parte' in its order dated 8-12-1971 and similarly used that expression while delivering the judgment on merit on 19-1-1972, but nevertheless the Court intended to put an end to litigation. It was clearly considered that lime was granted to the defendant more than once to produce evidence and no steps were taken to summon the witnesses, The case was an old one. The Court intended to decide the suit forthwith. With that purpose the order dated 8-12-1971 was passed. Therefore, the decision was under Rule 3 of Order 17. The expression 'ex parte' was used merely to indicate that one of the parties was absent and so the decision was being given in the absence of that party, although it was a decision on merit.'
8. These observations seem to lay down that the default must be presumed under Rule 3 of Order 17 where a party has failed to do what it was directed to do and has remained absent. With respect I may say that this is not the true import of Rule 3, There can be no default unless the party comes and fails to satisfy the Court as to the existence of an adequate reason for not having done what it was required to do. As such I am not inclined to follow this decision.
9. The result therefore is that this revision succeeds and is allowed; the impugned orders of the Courts below are set aside; and, the matter is referred back to the trial Court with line direction that it shall proceed to decide the application on merits. The parties are directed to appear in the trial Court on 27-5-1983.