Beaumont, C.J:— This is an application for revision in respect of a judgment of the First Glass Subordinate Judge of Sholapur, and the case arises in this way. The original suit was brought before the Joint Subordinate Judge of Sholapur and it appears from his judgment, dated 10th February 1927, that the evidence in the case had been concluded and the plaintiff's advocate was then asked by the Judge the question:
“How, in view of the statement of his own client the plaintiff, the marriage of Bhagawa with the deceased Shantapa could be held valid under the Hindu law”
2. The Judge apparently—suggesting that the marriage might be invalid under the Hindu law—and the pleader asked for time to enable him to consider the question. The case was accordingly adjourned to the following Wednesday; on Wednesday neither the plaintiff nor his pleader was present and the case was then adjourned to Thursday. Again, on Thursday, neither the plaintiff nor his pleader was present, a search was made for the pleader but apparently he was not in the precincts of the Court, and thereupon the learned Judge made this order: “Suit dismissed with costs for default of appearance.”
3. From that order the plaintiff appealed to the First Class Subordinate Judge who dismissed the appeal on the ground that the plaintiff ought to have applied under R. 9, O. 9, to the trial Judge to set aside the order dismissing for default of appearance, and it is in respect of the latter order that the present application is made.
4. Now the rules relating to dismissing actions for default of appearance are not very easy to reconcile. There is, in the first place, O. 9, R. 8 which provides:
“Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder,”
5. And then R. 9 provides:
“Where a suit is wholly or partly dismisses under R. 8 the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make ??? order setting aside the dismissal upon suet terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit.”
6. In my opinion that order applies in respect of the first hearing, but where you come to subsequent hearings, I think the order which has to be looked at is O. 17. That order provides in R. 1, ??? the Court may, if sufficient cause is ??? at any stage of the suit, grant time to the parties or to any of them, and may from time to time adjourn the hearing ??? the suit. Then R. 2 provides:
“Where, on any day to which the hearing ??? the suit is adjourned; the parties or any ??? them fail to appear, the Court may proceed ??? dispose of the suit in one of the modes ??? in that behalf by O. 9 or make such other order as it thinks fit,”
7. So that rule clearly extends the operation of Rr. 8 and 9, of O. 9 to ??? adjournment which takes place in ??? course of the hearing of the suit, ??? which adjournment there is a failure ??? appearance. Then R. 3 provides:
“Where any party to a suit to whom ??? has been granted fails to produce his evidence ??? to cause the attendance of his witnesses, or ??? 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 ???.”
8. Now it seams clear that this particular case falls within the words of R. 3, because time was granted either to produce evidence or to perform another act necessary to the further progress of the suit, ???, produce ground showing that the particular marriage in question was a ??? marriage. I think therefore that ??? Judge clearly had power under R. 3 to ??? the suit and as the evidence had been closed, he would have had no difficulty in so doing, I am bound to say that I think the words of R. 2 are also vide enough to include this case. I do not think it is very easy to say exactly what the distinction between Rr. 2 and 3 ???. The High Court in Allahabad, in ??? Lal Har Narain v. Debi Das (1) and Ram Adhin v. Ram Pharose (2), seems to treat R. 2 as applying to the case of an adjournment where on the ??? hearing the parties or their ??? do not appear, and R. 3 as applying ??? a case of an adjournment, where the parties or their pleaders do appear. But ??? do not think that the distinction between the rules can depend on the fact of whether the pleader or counsel happens ??? be in Court at the moment when the ??? case is called on. It may be that R. 3 only applies to cases where an adjournment has been granted at the ??? of one of the parties and R. 2 applies to an adjourument at the instance of the Court, or it may be that a case can all either under R. 2 or R. 3, and the court has a discretion according to the circumstances, under which of the two ??? it will act.
9. Even on the latter hypothesis, I think that this case is one in which the Judge ??? to have acted under R. 3 because ??? whole of the evidence had been closed, ??? arguments had been in the main ???, there was only one point open ??? the learned Judge could therefore ??? dealt with the case on the merits, ??? think authority for saying that as ??? the right course is to be found in the case referred to by Mr. Mulgaonkar of Ningappa v. Gowdappa (3).
10. In my view therefore the learned Judge ought to have decided this case on the merits, and I think notwithstanding a certain amount of delay, we ought not to penalize the plaintiff for the error of his pleader in the trial Court and that we should refer this case back to the trial Judge to decide the case on the merits. Inasmuch as the trouble has been occasioned by the fact that the plaintiff's pleader was not present in Court the plaintiff should pay the defendant's costs in the lower appellate Court and in this Court. The costs of the proceedings before the trial Judge to abide the event.
Madgavkar, J.:— As observed in Ratnabai v. Shankar Deochand (4), soma difficulties are occasioned by the peculiar wording of Rr. 2 and 3, O. 17. On the whole, reading that order alone with O. 9, O. 9 applies to the first hearing, O. 17 to subsequent hearings. At these subsequent hearings R. 2, O. 17 gives the same powers to the Court when the parties fail to appear as O. 9 does at the first hearing. R. 2 therefore is general. R. 3 is more particular. It rather deals with adjournments granted to a party and on default of attendance by that party empowers the Court to decide the suit forthwith. Whenever a suit is dismissed, the Court should, in my opinion, invariably state the precise order and rule under which it purports to dismiss it. The learned Joint Subordinate Judge in the present case did not do so. The evidence was complete except for a point which occurred to him after the arguments were concluded. The mere failure of the plaintiff's pleader to attend and answer a question at any of the adjourned hearings might perhaps under R. 2 enable the Court to dismiss the suit for default, but in the circumstances there can be no question that was not the proper course contemplated. It was rather the course laid down in R. 3 and on the distinctions between these rules different views have been taken as for instance, in Basayya v. Allayya (5) and Phul Kuar v. Hashmatullak Khan (6). In this view, the learned Subordinate Judge did not expressly purport to make the order under R. 2. The plaintiff had at least some justification for filing an appeal and not for an application under R. 9, O. 9, to set aside the order of dismissal. There was no unreasonable delay in filing the present application after the decision of the appeal against him. In these circumstances, I am unable to agree that there is any bar of limitation to the present application. On the merits, for the reasons stated above, I agree with the order proposed by my Lord, the Chief Justice.
S.N/R.K
11. Case remanded.