The main legal point established in the judgment is the interpretation and application of the provisions of Order 17 Rule 2, Order 17 Rule 3, and Order 9 Rule 8 of C. P. C. in determining the maintainability of an appeal in cases of dismissal for default.

( 1 ) THIS Misc Second Appeal is preferred against the judgment and decree of the Civil judge, Karwar dated 6. 1. 1988 passed in r. A. No. 44/1988 reversing the decision of the munsiff, Honavar, passed on 26. 5. 1988 in o. S. No. 17/1976.

( 2 ) THE material facts in brief are as follows: The suit in O. S. No. 17/1976 which was pending on the file of the Munsiff, honavar, was posted for evidence of the plaintiffs on 26. 5. 1988. On the said date the parties remained absent and therefore the counsel for the plaintiffs filed an application for adjournment but the adjournment application was rejected and the suit was dismissed for default. Thereafter appeal was preferred before the Civil Judge, Karwar, against the said order of dismissal. The dismissal order was not on merits.

( 3 ) THE appeal was allowed by the appellate Court and the judgment and decree passed by the Trial Court was set aside and the suit was restored to file for disposal of the suit in accordance with law.

( 4 ) THE Appellate Court focussed its attention on the question whether the appeal preferred before it was maintainable under order 17, Rule 2 and 3 of Civil Procedure code. The Appellate Court held that the appeal was maintainable since the impugned order was under Order 17 Rule 3 of C. P. C.

( 5 ) ORDER 17, Rule 2 of C. P. C. reads thus:"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 9 or make such other order as it thinks fit. "according to Order 17, Rule 3 of C. P. C. "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. "according to Order 9, Rule 8 of C. P. C"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. "resorting to the provisions contained in order 9, Rule 8 of C. P. C. the Trial Court dismissed the suit and no evidence had been recorded before the suit was dismissed for non-prosecution. The order of dismissal was in the nature of dismissal for default simplicitor. If the order had been passed under Order 17, Rule 3, the appeal would lie but not in respect of an order passed under order 17, Rule 2.

( 6 ) THE learned Counsel for the appellants contended that no evidence was recorded by the Trial Court and the order dismissing the suit was passed for non-appearance of the plaintiffs and since no evidence was recorded before the said order was passed, the provisions of Order 17, Rule 2 are attracted and not Order 17, Rule 3. The learned Counsel sought support from the decision of the Supreme Court in prakash Chander Manchanda and another v Janki Manchanda, A. I. R. 1987 S. C. page 42. In that case the Supreme Court took the view that, if on a date fixed, one of the parties to the suit remained absent and for that party no evidence had been recorded up to that date, the Court has no option but to proceed to dispose of the matter in accordance with order 17, Rule 2 in any one of the modes prescribed under Order 9 of the Civil procedure Code. After the amendment by act 104 of 1976 to Order 17, Rules 2 and 3, in cases where a party is absent the only course is as mentioned in Order 17, Rule 3 (b) to proceed under Rule 2. Therefore, in the absence o