(1) This revision petition arises out of an application filed by the second defendant (petitioner before me) under order 9 rule 13 c. P. C. The facts material for the purpose of appreciating the contentions raised before me are that o. S. 193/1957 was posted for trul on 2 - 1 - 1960. The second defendant filed an application for adjournment on that date. Rejecting his petition he was set ex parte after completing the recording of the deposition of p. W. 1 the trial court proceeded to deliver thejudgment. It is to set aside thar decree that the petititn was nied uudei order y rule 13 c. P. C by the second defendant. This petition was resisted by the plaintiff not only on merits but also on the ground that the decree passed on 2 - 1 - 1960 falls under order 17 rule 3 c. P. C. And as such no application under order 9 rule 13 c. P, c. Lies. The trial court epbolding the contention of the plaintiffs dismissed the petition, it held that the judgment and decree dated 2 - 1 - 1960 tell under order - 17 rule - 3 c. P. C. And. Therefore no application under order 9 rule 3 c. P. C. Was maintainable it did not decide the application on merits dissatisfied with that order, the second defendant cauled the matter in appeal. The learned subordinate judge, kakinada dismissing the appeal agreed with the conclusion of the trial court, that the judgement of the 2nd january 1960 fell under order 17 rule 3 c. P. C. And as such, no application under order 9 rule 3 c. P. C. Was maintainable. The appellare court also found that the application tor adjournment was rightly rejected and consequently observed that there are nc grounds to set aside the ex parte decree. It is this view of the learned subordinate j tdge that is now assalled in this revision petition. The principal contention of sri k. B. Krishnamurti the learned counsel for the petitioner, is that when the petitioner was net prpsent after his application for adjournment was refused and when he was set ex rarte and when the judgement was given alter examining pw. 11 behind rhe back of the petitioner, such a judgment cannot fall under or. 17 r. 3 c p. C; that it is a judgment given under or 17 r. 2 c. P, c and that the petitioner was tight in filing an application under order 9 rule 13 c. P. C.

(2) It is, however contended by sri n. Bapiraju, the learned counsel for the respondents that once the petitioner, who was present, applied tor an adjournment after refusal of which he left the court, to such a case, it is order 17 rule 3 c. P. C. That applies and that no application under order 9 rule 13 c. P. C. Is maintainable. There cannot be any doubt that in order to attract the provisions of order 17 role 3 c. P. C. Two rhings are necessary. Firstly, the party must be present and secondly be must be guilty ot any one of the three things mentioned in rule 3 c p. C. It is now beyond doubt that the mere presence in court of a party or his counsel not duly instructed cannot be considered as an appearance of the pacty within the meaning of rule 3 c. P. C. It is also now clear that, if the application falls both under rule 2 and rule 3 c. P. C. The judgment will be treated as falling under rule 2 for the purpose oi the remedy.

(3) Viewed in this background i have no hesication to hold that when a party applies for seeking an adjournment, on the refusal of which he absents hunself and is, therefore, set ex parte and does not participate in further proceedings which went before the court that day resulting in a decree, such a decree cannot be said to be tailing under order 17 rule 3 c. P. C. To attract rule 3. C. P. C. The party must be present at th time when acoial proceedings go on. If, before the commencement of the proceedings his request for an adjournment was refused and, he absents himself thereafter, his position cannot be in any way worse than the position of a person who absents himself ftorn the vtry beginning. Suppose, in this case instead of personally presenting the application he had sent an application seeking the adjournment and that application had been rejected, it could not have been argued that the further proceedings which went on after setting him ex parte and resulted in a decree at the end, were under order 17 rule 3 c. P. C. If that is so, then if a person, merely appeared for the purpose of seeking an adjournment on the refusal of which he did not participate in the further proceedings, it cannot be said that he was present and participated in the proceedings particularly when he was expressly set ex parti. What has happened in this case is that after his application for adjournment was rejected, he went out and did not participate in further proceedings. It is clear from the jugments of the court below that in his absence, p. W. I's deposition was completed. Nobody was present on behalf of the second defendant and no witness of his was present, and the court proceeded to deliver the judgment ex parte. I am clear that this is not the cate which tails under order 17 rule 3 c. P. C i am tortitied in this conclusion oi mine by the judgment of the madras high court.

(4) In kammela somasundaramma v kammela seshugin rao alias projessor giri rao and others l the suit was posted tor arguments on an issue and was adjourned to the 4th april, 1944, on which date the plaintiff tiled a pention to amend the plamc so as to clarity her case. The matter came up for arguments again on issue no. 2 on 14th feb. , 1965. On a reques made by the plaintiff's pleader it was adjourned to 19th february. On that date, a further adjournment which was asked, was retused, thereupon the plaintiff's lawyer reported no instructions and witndrew from the case the court then asked the plaintiff whether she was prepared to meet the arguments on the second issue, whereupon she said that she wanted to engage another pleader. Refesing that request, the arguments on beaaltot the first detendant were then heard. While these arguments ware proceeding, the plaintiff lett the court and her absence was recorded. Upon these tacts, the learned judges observed:

"we are not concerned here with the class of cases where the court decides the suit in circumstances which jusuty the conclusion that the plaintiff though physically present, was not actually appearing for the purpose of conducting the case."

And held in that case

"here the plaintiff was physically absent during the later portions of the arguments ot the first defendant's lawyer ana at the time when the case was closed."

The said judgment, therefore, was treated as an ex parte judgment and it was held that an application under order 9 rule 9 c. P. C. Could justifiably lie. It will be clear that the facts of that case come very close to the facts of the present case. F do not think that in pichamma v. Sreeramulu l the full bench decided contrary to what i have said above. The learned advocate relying upon the passage appearing at page 32 argues that order 17 rule 3 c. P. C. Would apply even where the parry puts in his appearance for the purpose of asking an adjournment after refusal of which he absents himself and thereafter the proceedings are concluded that day. The following is the passage :

"i think the correct rule is to treat rule 3 as applying only to cases where the parties are present and have not satisfied the court as to the existence of any adequate reason for their not having done what they were directed to do."

This passage appears in the judgment of kumaraswami sastry j. I do not agree with the interpretation put upon that passage to mean that once an appearance is put in, that is enough to bring the case under order 17 rule 3 c. P. C, inspite of the fact that the party absented himself at the time when the actual proceedings went on and he was set ex parte, the preceedings resulting in ex parte decree. I do not think that, that case decides anything of that kind. It must be remembered that if the party who is present takes no further part in the proceedings his mere presence in the court does not make it an appearance in the suit. The party who leaves the court, after his request for adjournment is refused, cannot be placed in a worse position. There is hardly any difference in principle in these two situations. That this is so, is supported by a decision of the madras high court. In natesa thava v. Vairavan 2 it is held that where the plaintiff though physically present in court refuses to take part in the proceedings after the dismissal of his application for adjournment, as represented by his counsel, he cannot be said to have been present there as plaintiff, partaking in the proceedings. His physical presence in the court cannot be taken cognizance of, and the only conclusion that one can come to, is that he did not appear at the hearing. The case, therefore, comes under rule 2 and not rule 3 of order 17 c. P. C.

(5) A similar view is held in anothr full bench decision of this court in m. Agaiah v. M. Abdul kareem 3: their lordships held.

"the scope of rule 2 of order 17, civil procedure code, is quite distinct from that of rule 3. Rule 2 applies to all cases of absence of parties irrespective of their failure to perfom the act necessary to the further progress of the suit notwithstanding the fact that time was granted earlier for that purpose. Order 17, rule 3 conies 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."

It is thus plain that mere physical presence of the party is not sufficient. That is what is now abundantly made clear by the explanation added to rule 3 of order 17 c. P. C, apart from being physically present, he must also be prepared to proceed with the further heating of the case. It is only to such an effective presence and where default ot the kind mentioned in the rule is committed that rule 3 of order 17 c. P. C. Would be attracted. I am, therefore, satisfied that order 17 rule 3 c. P. C. Does not apply to a case where a party appears merely for the purpose of seeking an adjournment, after the refusal of which, whether he goes out or although remains present, does not participate in the hearing of the case, in either case he would be considered as not present. Any decree passed in these circumstances would not be deemed to have been passed under or. 17 rule 3. It would be contradiction in terms to hold that the person who absents or says that he does not appear, does in fact appear. The courts below, therefore, have erroneously held that the present case falls within the ambit of order 17 rule 3 c. P. C. An application under order 9 rule 13 c, p. C. Therefore, is maintainable.

(6) I have already mentioned that the trial court has not discussed the application on merits but rejected the petition on the pseliminary ground that it was not maintainable. In these circumstances, when the appellate court had agreed with the preliminary objection, it was not advisable tor the appellate court to decide the application on merits, particularly when no enquiry was made and the lower court had not considered the application on merits. Even in a case where the appellate court has disagreed with the conclusion of the trial court on preliminary point, normally, the better course is to remand the case ior its disposal on merits. The order of tha lower appellate court also is not satisfactory.

(7) While it holds that the relusal to adjourn was justified although no enquiry was made, it expresses its opinion perhaps upon that ground alone that there are no grounds for setting aside the ex pane decree. That the trial court did not make any enquiry and that the appellate court did not consider even the affidavits is not disputed. I do not think, therefore, that there is any satisfactory judgment of the appellate court on merits of the application. For these reasons, i set aside the orders of both the courts below and remit the case to the trial court for its disposal on merits in accordance with law after making proper enquiry. Costs of this revision petition will abide the result of the case. Petition allowed and case remitted.