( 1 ) THE Appellant herein was the original plaintiff in O. S. No. 124 of 1985 on the file of the Subordinate Judge, Kovvur, West Godavari District. The plaintiff filed the said suit for compensation from the defendants-respondents herein for using defamatory words against the petitioner herein. The said suit was dismissed for default. Therefore, the appellant herein filed an application I. A. No. 1063 of 1994 in the same Court for restoring the suit to file under Order 9 Rule 9 C. P. C. after setting aside the default order dated 15-9-1994. It appears from the record that the said application was dismissed by the learned Subordinate Judge, Kovvur. Against the said order, the present appeal has been filed by the appellant herein.

( 2 ) IT appears from the record that the suit was fixed for hearing after adjourning the same (on) two or three occasions and the appellant herein was directed to lead evidence, but the appellant herein refused to lead evidence and therefore the learned Judge dismissed I. A. No. 1063 of 1994 with the following observations:"the suit is of the year 1985. The suit was being adjourned at the request of parties and also on petitions. On 15-6-1994 the suit was adjourned on petition. On 17-6-1994 the plaintiff was present but he did not proceed with the trial. Hence the suit was dismissed with costs. It shows that the plaintiff was not willing to proceed with the suit at that time. There are no grounds to set aside the dismissal order. "

( 3 ) THE learned counsel Mr. P. Girish Kumar appearing on behalf of the appellant herein submitted that the order passed by the learned Judge is an order under Order 17 Rule 2 C. P. C. and therefore the suit can be restored under Order 9 Rule 9 C. P. C. and the learned Judge ought to have restored the suit to file. While rebutting the aforesaid arguments, the learned counsel for the respondents herein submitted that the order passed by the learned Judge is not an order under Order 17 Rule 2 C. P. C. but it is an order under Order 17 Rule 3 C. P. C.

( 4 ) IN order to appreciate the controversy between the parties, it is necessary to extract Order 17 Rules 2 and 3 C. P. C. "or. 17 R. 2 Procedure if parties fail to appear on day fixed: 2. Where, on any day to which the hearing of the suit is adjourned, the 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 IX or make such other order as it thinks fit. Explanation:- Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceeded with the case as if such party were present. Or. 17 R. 3: Court may proceed notwithstanding either parry fails to produce evidence, etc. 3. 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 (a) if the parties are present, proceed to decide the suit forthwith; or (b) if the parties are, or any of them is, absent, proceed under Rule 2. "

( 5 ) THE learned counsel appearing in behalf of the appellant herein invited my attention to Explanation to Order 17 Rule 2 C. P. C. which is Andhra Pradesh amendment which reads as under:"the mere presence in the Court of a party,or his counsel not duly instructed shall not be considered to be an appearance of the party within the meaning of the Rule. "

( 6 ) THE learned counsel with this Explanation to Rule 2 of Order 17 C. P. C. submitted that though the appellant herein refused to lead evidence, the order of dismissal amounts an order under Order 17 Rule 2 C. P. C. and not under order 17 Rule 3 C. P. C

( 7 ) IN order to substantiate the contention, the learned counsel for the