1.- 4.The plaintiff's main contention, apart from other irrelevant contention with which we are not concerned, was that he could not remain present on account of his illness on the date fixed for hearing of the suit on 12-7-67 and that a dismissal of the suit on account of his default in appearance was neither legal nor proper. According to him, such an order particularly when most of the evidence was over in the case would cause considerable hardship and grave injustice and that he should be given an opportunity to cross-examine the three witnesses examined on behalf of the defendants in the case. The arguments can then be heard and a decision on merits may well be given by the Court.

5. (10th March, 1969). Now it would appear from the facts set out hereinabove that the plaintiff-appellant was given the greatest latitude possible in giving him accommodation, much though it was not expected of the Court to take any notice of any letters or telegrams sent by him, or to inform him of the next date in the matter. The Court was justified in rejecting his prayer for adjournment on the date of hearing any further and it would not be possible to characterize that part of the order as in any way so improper in the circumstances of the case.

6. But the question is whether the Court acting under Order 17, Rule 2 of the Civil Procedure Code in dismissing the suit on account of the default of appearance of the plaintiff on that day was legal and proper, or that it should have exercised its powers under Order 17, Rule 3 of the Civil Procedure Code.

7. Now Order 17, of the Civil Procedure Code generally deals with adjournments. Rule 1 thereof gives power to the Court to grant adjournment at any stage of the suit. Rule 2 then provides that where, on any day to which the hearing of the suit is adjourned, 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 may think fit. Now Order 9 referred to therein deals with appearance of parties and the consequence of parties and the consequence of non-appearance. In all the cases which come under Order IX, the party against whom a decree or order is passed in default of his appearance, can apply to the Court to have the exparte decree or order set aside on the ground that he can show sufficient cause for his non-appearance. Ordinarily, therefore, as observed in the case of Ratanbai Shivlal v. Shankar Deochand, 24 Bom LR 775 = (AIR 1923 Bom 27) if a case appears on the board on an adjourned date for hearing, and there is default of appearance on the part of both or either of the parties, the Court must refer to Order 9 so as to ascertain the proper procedure to be followed, and there is no necessity whatever to have any recourse to O. XVII, R .3. In those circumstances the Court, no doubt, can dismiss the suit in default of the appearance of the plaintiff on the adjourned date of hearing under O.17, R. 2 read with Order 9, Rule 8 of the Civil Procedure Code. From the observations made at page 778 (of Bom LR) = (at prosecution. 29 of AIR) however, it appears clear that while ordinarily O.17, R. 2, will apply, and there is no necessity to have recourse to the stricter provisions of Rule 3 unless the hearing of the action has already commenced. Going further, the observations made therein also show that where the case has been part heard and if an adjournment is granted, the provisions contained in Order XVII, Rule 3 can well be considered to apply. In other words, that decision contemplates applicability of provisions contained in Order XVII, Rule 3 of the Civil Procedure Code where the action has been part-heard and an adjournment was obtained. Another decision in the case of Bassayya Ayappa Sarghanachaya v. Allayya Maharudrayya, 27 Bom LR 477 = (AIR 1925 Bom 328), was also referred to. It lays down substantially the same view as in the earlier decision referred to. It may be observed that in both these cases the hearing of the suit had not commenced till the stage and the adjournment granted in relation thereto. Where therefore, the suit has not proceeded at all on the adjourned date of hearing of the suit parties or any of them fail to appear, the Court should ordinarily deal with the matter under the provisions contained in Order XVII, Rule 2 read with Order IX of the Civil Procedure Code, but when it has already begun and the suit was part-heard, Order XVII, Rule 3 can well be considered to apply.

8. Now Rule 3 of Order XVII of the Civil Procedure Code runs thus:-

"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."

Before applying this provision, the suit must have been already for hearing and had come to be adjourned at the instance of any party to the suit. Besides that adjournment was obtained by that party for any of the purposes set out therein. If that party fails to appear, the Court would have to proceed to decide the suit on merits. As observed in the case of Basalingappa Kushappa Kumbhar v. Shidramappa Irappa Shivanagi, 45 Bom LR 697 = (AIR 1943 Bom 321) (FB). Order XVII, Rule 2 applies only if the previous adjournment is granted for any of the purposes mentioned in the rule and the party commits default in complying with it on the adjourned date. Towards the end of the judgment, the High Court has referred to the decision in the case of Mariannissa v. Ramkalpa Gorain (1907) ILR 34 Cal 235, wherein the relation between the two rules, which correspond to Sections 157 and 158 respectively, of the former Civil Procedure Code has been well explained. Those observations run thus: -

"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. As pointed out by the learned Judges of the Allahabad High Court in Sitara Begam v. Tulsi Singh, ( 1901) ILR 23 All 462 what Section 158 provides is, that the mere fact of a party making default in the performance of what he was directed to do 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 such 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. It is not necessary therefore to lay much stress upon the difference in phraseology between sections 157 and 158, one of which speaks of the disposal of the suit, and the other of the decision of the suit. It is, clear, however, that the contingency contemplated in Section 157 may happen in a case which falls within the letter of Section 158. 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."

It would appear therefrom that S. 158 i.e., the present Rule 3 of Order XVII of the Civil Procedure Code contemplates a case in which the Court has materials before it to enable it to proceed to a decision of the suit and if there are no materials on record the appropriate procedure to follow would by that laid down under Section 157 which corresponds to Rule 2 of Order XVII of the Civil Procedure Code. In other words, if there are materials on record to enable the Court to decide the suit, the Court ought to proceed under O. XVII, Rule 3 of the Civil Procedure Code. Those observations were approved of by the Division Bench of the High Court of Bombay in the case referred to.

9. We have, however, two other cases of the Bombay High Court which support the view that we take viz. that when the suit has been part-heard or that where there are materials on record, to proceed with the suit and decide the same on merits, the provisions contained in Order XVII. Rule 3 would be most appropriate to be applied and not the provisions of Order XVII, Rule 2 read with Order IX, Rule 8 of the Civil Procedure Code. In the case of Ningappa Virtappa Velloor v. Gowdappa, (1905) 7 Bom LR 261, the plaintiff had adduced all the evidence on which he intended to rely apart from what might possibly be required by way of rebuttal, and, on the following day, neither the plaintiff nor his pleader was in Court with the result that the Court made an order dismissing his suit under Section 157 which corresponds to Rule 2 of Order XVII of the Civil Procedure Code. Both the Courts below found that the order was proper. The High Court, however, held that the suit ought to have been decided on merits. Illustrating the point, the High Court observed that, "If the view which has found favour in the lower Courts were correct, then it would seem to us that if, when the whole evidence in the case was practically completed, there was a non-appearance, the Judge might say. "I am not going to deal with this case on the merits though the evidence is recorded; I amendment going to dismiss it under Section 102." Then they have observed that "such a course would be a grave injustice and such an order cannot be allowed to stand". This decision also came to be followed in a subsequent decision in the case of Irappa Chanappa v. Sidava Tukappa, AIR 1931 Bom 111. The facts of the case were that after the evidence in the case was recorded, the plaintiff's advocate was asked a question by the Judge, and the advocate asked for time to enable him to answer that question. Time was given but he failed to attend at the adjourned hearing and the Court dismissed the suit for default of appearance without stating expressly under what rule the suit was dismissed. Against the order of dismissal the plaintiff appealed instead of applying under O. IX, R. 9 to the trial Court. The High Court held that although the Court could under Order XVII, Rule 2 dismiss the suit for default yet that was not the proper course to follow. As the evidence was closed the Court should have tried the case on merits under O. XVII, R.3. It was further observed that as the Court did not expressly purport to make the order under Rule 2, the plaintiff had justification for filing appeal and not for an application to set aside order of dismissal. During the course of the judgment. His Lordship Beaumont, C.J., after observing that Order IX, applies in respect of the first hearing and Order XVII would apply in respect of subsequent hearings, stated that the particular case falls within the words of Rule 3, because time was granted either to produce evidence or to perform another act necessary to the further progress of the suit, namely, produce ground showing that the particular marriage in question was a valid marriage. He further observed that this case is one in which the Judge ought to have acted under Rule 3 because the whole of the evidence had been closed, the arguments had been in the main finished, there was only one point open and the learned Judge could, therefore, have dealt with the case on the merits. He took support from the decision in the case of (1905) 7 Bom LR 261 referred to hereinabove. In other words, the effect of these decisions is that once the Court finds that there are materials enough on record and that for the further progress of the suit or for any such reasons contemplated under Rule 3 of Order XVII of the Civil Procedure Code, the suit had come to be adjourned at the instance of any party and he committed default in appearance on the subsequent hearing, the Court has to decide the suit on merits rather than dismiss the suit under Order XVII, Rule 2 of the Civil Procedure Code.

10. Turning to the facts of this case, it clearly appears that this suit was at one time heard and decided on merits. In appeal filed by this plaintiff against the dismissal of the suit on merits, this Court happened to remand the suit by passing an order which we have already set out hereabove while narrating the facts. By that order the plaintiff was allowed to lead his further evidence as also of his witnesses in so far as it related to certain documents sought to be produced by the other side. The three witnesses examined on behalf of the defendants in the suit were then to be cross-examined by the plaintiff and it was thereafter that after adducing any further evidence by the defendants if they so desired the Court was required to hear the arguments and dispose of the suit in accordance with law. After the suit was set down for further hearing in the trial Court, the plaintiff had examined himself. He also examined his two witnesses as already stated hereabove. Thereafter the defendants' witness Mr. Punater was already put in the witness box and his cross-examination was to be taken by the plaintiff or his advocate. The suit was adjourned at the instance of the plaintiff, on the previous occasion and the matter was set down for cross-examination of Mr. Punater and two other witnesses of the defendants. The plaintiff remained absent on that day and the evidence of Mr. Punater came to be closed at the instance of the defendants. The Court then passed an order of dismissal on account of non-appearance of the plaintiff. The proper course that the Court should have adopted in the circumstances was to close the evidence of Mr. Punater and two other witnesses whose cross-examination was to take place by the plaintiff as the plaintiff had remained absent on that day. In fact the entire evidence was already recorded before and the purpose of recording further evidence was quite limited in so far as it related to the production of certain documents in the case. The Court should have closed the evidence and proceeded either to adjourn for hearing the arguments on the next day or hearing the arguments on that very day and dispose it of in accordance with law. The learned Judge has, therefore, failed to exercise jurisdiction under Order XVII, Rule 3 of the Civil Procedure Code and instead passed an order under Order XVII, Rule 2 read with Order IX, Rule 8 of the Civil Procedure Code and thereby has committed an illegality. That order, therefore, is illegal and is liable to be set aside.

11. In the result, therefore, this application is allowed and that the suit is remanded to the trial Court for proceeding further from the stage it had reached. Now that the suit is remanded, we consider it proper to allow the plaintiff an opportunity to cross-examine Mr. Punater as also the two other witnesses Mr. M.B. Patel and Mr. B.R. Rao as per the order of remand passed by this Court earlier in First Appeal No.52 of 1965. The plaintiff has stated before this Court that he does not require any assistance of an advocate to be appointed by the Court and that he will have his own advocate if he so desired. He has thus not to be given any such assistance even if asked for. It is also made clear to him that the Court is justified in not taking notice of any letters or telegrams sent by him to the Court for adjournment or the like, and that there is no duty cast on the Court to inform him of any date of hearing. This however, does not fetter the discretion to be exercised by the Court if he thought it is necessary. The Court shall proceed further to dispose it of in accordance with law without any delay. In the circumstances of the case, we make no order as to costs.

12. Suit remanded.