Judgment

OZA, J. :- This appeal arises as a result of leave granted by this Court against the summary dismissal of the first appeal by the appellant before the High Court of Delhi. The first appeal was filed against an order passed by Sub Judge Ist Class. Delhi, rejecting the review petition filed by the petitioner. The facts necessary for disposal of this case are that in a suit filed against the present appellant in the Court of Sub Judge Ist Class, Delhi, when the matter was fixed for evidence of the defendant as the plaintiffs evidence was over and defendant present appellants evidence was to begin when the case was taken up on 24-1-1985. The order sheet of the Court shows that no D W is present and at the request of the counsel of the defendant the case was adjourned to 7th May, 1985. It is stated that on this date for some reason, the case was transferred to another board and in the transferee Court, the order sheet showed presence of the counsel for parties and it further shows that as the case was received on transfer it was ordered to be put up on 21-8-1985.

2. Learned counsel for the appellant disputed the mention in these proceedings about the presence of the counsel of the defendant-appellant. But in any event as it is not important for the decision of this appeal it is not necessary to go into that question.

3. On 21-8-1985 it appears that there was a holiday and therefore the case was put up before the learned Judge on 22-8-1985 and it was postponed to 30-10-1985 for the evidence of the defendant. On 30-10-1985 the order sheet showed that the counsel for plaintiff was present but no one was present for the defendant. The Court therefore directed the case to be taken up at 1 P.M. At 1 P.M. again the situation remained the same as it is clear from the order sheet. It also shows that none of the witnesses for defendant was also present and therefore the Court passed the order : "the case was called but none has appeared on behalf of the defendant and no D Ws present. The evidence of defendant closed. Now to come up for arguments". The next date fixed was 1-11-1985. On this date also nobody appeared for the defendant and counsel for the plaintiff who was present sought adjournment and the case was adjourned to 8-11-1985. On 8-11-1985 arguments of the plaintiffs counsel were heard and as none was present for the defendant the case was fixed for judgment on 11-11-1985. On this date also counsel for the plaintiff was present. Nobody was present for the defendant and order sheet shows that as judgment was not ready it was postponed to 21-11-1985. On 21-11-1985. the judgment was dictated and pronounced and the order sheet also shows that the learned Judge ordered decree to be prepared. It appears that after this the defendant claimed that they came to know about the decree on 18-1-1986 as on that day the plaintiff came to take possession and therefore filed an application under O. 9, R. 13 for setting aside the ex parte decree which was dismissed by the trial Court holding that the case was disposed of not in accordance with O. 17, R. 2 but in accordance with O. 17, R. 3 and therefore the application under O. 9, R. 13 was not maintainable.

4. The appellant-defendant thereafter filed an application for review but that application also was dismissed by the trial Court. Thereafter the first appeal was filed before the High Court of Delhi which was dismissed summarily by the impugned order.

5. Learned counsel for parties submitted at length the controversy that existed before the amendment of Civil P.C. in 1976 about the interpretation of O. 17, R. 2 and O. 17, R. 3. Apparently there were two views, one was that O. 17, R. 3 could be used for deciding the matter on merits if the party is present but has failed to do what was expected of that party to do and this rule could not be used against a party who was present whereas the other view was that even if a party is absent but has failed to do what was expected of him then it was t