1. In this case the point that really arise;; for consideration, is whether the matter was correctly disposed of under Rule 3 of Order 17 of the CPC and whether an application under Rule 13 of Order 9 of the CPC would lie for setting aside the decree passed in absence of the defendant.

2. The suit came up for hearing on 10th of August 1959 but after examination and cross-examination of one of the plaintiffs' witnesses the defendant prayed for an adjournment due to the absence of some material witnesses and the case was adjourned till 22nd September, 1959. On that date the plaintiffs were ready with, their witnesses but the defendant made a prayer fear adjournment alleging that he was ill and on adjournment being refused, the advocate for the defendant withdrew from the case as he had no instruction to proceed with the case. The learned Subordinate Judge proceeded to decide the matter on the materials on record and on 25th January, 1960 passed a decree in favour of the plaintiffs allowing the prayer for eviction of the defendant, the suit being one for eviction of the defendant on termination of the tenancy. The defendant thereupon made an application under Order 9, Rule 13 of the CPC for setting aside the decree that was passed in his absence. The application was opposed, but the learned Subordinate Judge by his order dated 13th of June 1960 set aside the decree and restored the suit. The learned Subordinate Judge was of the opinion that the defendant succeeded in proving that he was ill on 22nd of September 1959 and that there was sufficient ground for his absence. Therefore, the point, as I have formulated above, is to examine whether the disposal was under Order 17, Rule 3 of the CPC on merit or it was an ex parte decree coming within Order 17, Rule 2 of the CPC.

3. The learned Subordinate Judge relying on the authority of the Madras High Court in the case of Dhana Lakshmi Ginning and Rice, Oil Working Co., Mangalagiri v. Yellappa Chetti, AIR 1952 Mad 1160, held that it was an ex parte decree against which an application under Order 9, Rule 13 lay, and, therefore, rejected the plaintiffs' contention that it was only by way of appeal that the order could be challenged and not by an application under Order 9 Rule 13 of the CPC.

4. The learned Subordinate Judge observed as follows:

“It would appear that the evidence of P.W I was available and he was cross examined on the previous date. Relying on his evidence a judgment was written out and the suit was decreed accordingly on 25-1-60 meanwhile the matter was before tile D.J on a transfer petition. Ordinarily the judgment of this kind has got to be said to be on merit but the learned advocate for the petitioner relying on a judgment of the Hon'ble Madras High Court urged that the judgment is an ex parte one.”

5. Before going into merits of the case. I might quote below the two provisions relevant for the purpose of this proceeding:

“Order 17, Rule 2.— Procedure if parties fail to appear on day fixed.—

Where, on any day to which the hearing of the suit is adjourned. She parties or any of them fail to appear, the Court may proceed to dispose of the Page: 100suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.

Order 17, Rule 3. — Court may proceed notwithstanding either party fails to produce evidence etc.—

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.”

6. It is admitted by both sides that if the decree dated 25th January, 1960 would come under Order 17, Rule 3 of the CPC on merit, the remedy would be by way of an appeal and not by an application under Order 9, Rule 13 as is available in case of disposal under Rule 2 of Order 17 of the CPC, and, I, therefore, need not discuss any authority on that proposition.

7. The following conditions are necessary for the purpose of satisfaction of Rule 3 quoted above, namely — (1) the hearing was adjourned on the application of a party to the suit as distinguished from an adjournment by the Court on its own motion, (2) the hearing was adjourned on the application of the party who subsequently makes the default, (3) the adjournment was granted to enable the party to produce his evidence or to cause the attendance of the witnesses or to perform any other act necessary to the further progress of the suit, and, (4) the party fails to perform any of the acts for which the adjournment was granted.

8. In this case, it appears that all these conditions were satisfied, and, in my opinion, application under Order 17, Rule 3 was attracted by the circumstances of the case. The provision is silent as to whether the defaulting party should be present or absent — when the Court is permitted to proceed to decide the suit forthwith, if the above conditions are satisfied. Therefore, the only point is whether even though the suit is decided on merits, it could be treated to be an ex parte decree coming within Order 17, Rule 2 of the CPC.

9. It is patent that the Madras view has always been that if the suit is decided ex parte even on materials on record, in the absence of one of the parties and though the case otherwise comes within the ambit of Order 17, Rule 3 of the CPC, it might be treated to be an ex parte decree coming within the scope of Rule 2 of the above order. The first case, and an important decision, on this point, is available in the Full Bench case reported in P.B Pichamma v. P. Shreeramulu, ILR 41 Mad 286 : (AIR 1918 Mad 143 (2)) (FB) and this case has been followed in other decisions of the said Hon'ble Court, and the decision reported in AIR 1952 Mad 160 — the one on which the learned Subordinate Judge relies — is on the same principle as decided by the Full Bench case referred to above.

10. It is seen that a similar view was taken by the Allahabad High Court as well, as would be evidenced from the decision in the case of Ram Adhin v. Ram Bharose, AIR 1925 All 182. The Allahabad High Court, however, made an amendment to the statute itself and finally decided that it is left to the option of the Judge when the conditions of O. 17, R. 3 of the CPC are satisfied, as to whether the Court would proceed under Order 17, Rule 3 or under Rule 2 of the same Order if a party is absent.

11. Therefore, the subsequent view of the Allahabad High Court is that it is purely at the discretion of the presiding officer as to whether the suit is to be decided on merit as provided under Order 17, Rule 3 or is to be decided ex parte as provided under Order 17, Rule 2 of the CPC. There is no decided case on the point of this Court, but the view of the Calcutta High Court is contrary to the view held by the Madras High Court and it is decided that when there are materials already on record, the Court is competent to pass a decree under Order 17, Rule 3 and against that an appeal would be competent and not an application under Order 9, Rule 13 of the CPC.

12. The apposite case is of Brojendra Nath v. Promatha Bhusan, AIR 1933 Cal 412. The learned Judges in that case discussed the various rulings of several High Courts in India and came to the conclusion that in a case where there was no material on record the proper procedure to be followed would be that laid down in Rule 2, but if there are materials on record the Court ought to proceed under Rule 3 of Order 17. The material extract in the judgment is as follows:

“To apply the procedure laid down in R. 3 to a case there must be the presence of both: the elements: viz: (i) the adjournment must have been at the instance of a party and (ii) there must be materials on the record for the Court to proceed to decide the suit. The presence of one without the other does not justify the application of R. 3. In an earlier case Mariannisa v. Ram Kalpa, Mulcherji and Holmwood, JJ., held that the scope of Section 157 of the Code of 1882 which corresponds to O. 17, R. 2 was distinct from that of S. 158 (O. 17, R. 3), but that the Court can act under S. 158 even though the parties are absent if the requirements of S. 158 are satisfied. In my opinion this seems to be the correct view with reference to the scope of these two rules. Although therefore the plaintiff, was absent on 29th August to which date the suit was adjourned at his instance for producing witnesses for the decision on the question of jurisdiction it was open to the Court to proceed to determine the question of jurisdiction on the materials put before it by defendant 6 and O. 17, R. 3 properly applies to the present case.”

13. In the present proceeding applying the principle of this case, I hold that there was sufficient justification for proceeding under Order 17, Rule 3 of the CPC and the judgment is on coming within the said rule, and, therefore, the application for setting aside the ex parte decree under Order 9, Rule 13 of the CPC was incompetent and it ought to have been accordingly rejected.

14. Since several decisions have been cited at the Bar I am making a short reference to the cases that I consider to be relevant. I must refer to the decisions of this Court though not strictly on the Page: 101point, but they laid down under what circumstances Order 17, Rule 3 of the CPC would be applicable as well as Rule 2 of the same Order. Those decisions are the cases of Amij Bhuyan… v. Akram Ali…Opposite Party., ILR (1950) 2 Assam 527 : AIR 1951 Assam 13, Mt. Gunada Kumari v. Mt. Basanti Kumari, AIR 1953 Assam 91 and R.S.N Co. Ltd. v. Dhirendra Krishna Paul, AIR 1952 Assam 33. In all those cases, however, on the facts it was held that it was Order 17, Rule 2 that was attracted and not Rule 3. The learned advocate for the opposite party relied on the decision in the case of Aktar Hossain v. Husseni Begam, AIR 1933 Cal 73. The observation made by Chief Justice Rankin was as follows:

“I confess there is a good deal to be said in favour of the view that where a suit has been decided upon some evidence given by the plaintiff and the evidence given by the defendant the right of appeal depends upon what the Court did and not upon what the Court should have done and on those lines there is a good deal to be said in favour of the view that the proper remedy is by way of appeal. It seems however, that, in a number of cases, a different view has been taken not always in cases exactly on all fours……….I am disposed to treat it on the line of the authority to which I have referred, as though the decree of dismissal had been a decree made ex parte. The plaintiff's evidence had not been completed and the suit was dismissed in his absence. So although the learned Judge has wrongly proceeded to call the defendant's evidence, I think we may treat it as a case coming within Order 9.”

15. It would be clear, therefore, that the decision was in consideration of the circumstances of this particular case and not that the view held in AIR 1933 Cal 412, was negatived. In the circumstances of the present case the decree was passed on the basis of the evidence that is already on record. In the case of Ganga Das v. Mst. Gopli, AIR 1960 Raj 245, the Court expressed the view that

“if 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 and the party is present, and the Court proceeds to decide the case, the only remedy open is by way of appeal.”

16. The Court further expressed the view that even if the party is absent the Court may decide the case under Order 17, Rule 3 if the conditions laid down in that rule are satisfied and if the case has been so decided the remedy of the party would be only by way of appeal, but if the Court in its discretion applied Rule 2 and dismissed the plaintiff's case only for default of his appearance he might file an application for restoration of the suit under Order 9, Rule 13 of the CPC. Mr. Gupta for the opposite Party laid much stress on the decision of the Patna High Court in Union Of India… v. Mangilal Jain…., AIR 1959 Pat 342 — which case, however, does not go to the full length of supporting him. What the Court observed in that case was:

“It is not the law that wherever there is default under the provision of O. 17, R. 3 the Court must decide the suit on merit under the provisions of R. 3 itself. There is a discretion left in the court even in cases of default under the provisions of O. 17, R. 3, either to proceed to decide the cases on merits or to give an ex parte decree in accordance with the provisions of O. 17, R. 2 of the CPC.”

17. In the facts of that particular case it was held that the defendant could not produce certain material witnesses and documents for sufficient reason and the High Court considered that provisions of O. 17, R. 3 of the CPC, were not properly applied. The Bombay view has also been against the view held by the Madras High Court. I have already expressed my view which is in accord with the view expressed by the Division Bench of the Calcutta High Court and I hold on the facts of this case that Order 17, Rule 3 of the CPC was properly applied as the conditions laid down in that rule were satisfied and the decree was passed on the evidence that was already on the record.

18. The result, therefore, is that the rule is made absolute and the order of the learned Subordinate Judge is set aside. In the circumstances of the case, however, I make no order as to costs.

19. Rule made absolute.