1-4. SHELAT, J. :- * * * * *

The plaintiff's main contention, apart from other irrelevant contention with which we are not concerned, was that he could not remain present on account of his illness on the date fixed for hearing of the suit on 12-7-67 and that a dismissal of the suit on account of his default in appearance was neither legal nor proper. According to him, such an order particularly when most of the evidence was over in the case would cause consideraable hardship and grave injustice and that he should be given an opportunity to cross-examine the three witnesses examined on behalf of the defendants in the case. The arguments can then be heard and a decision on merits may well be given by the Court.

5. (10th March, 1969). Now it would appear from the facts set out hereinabove that the plaintiff-appellant was given the greatest latitude possible in giving him accommodation, much though it was not expected of the Court to take any notice of any letters or telegrams sent by him, or to inform him of the next date in the matter. The Court was justified in rejecting his prayer for adjournment on the date of hearing any further and it would not be possible to characterize that part of the order as in any way so improper in the circumstances of the case.

6. But the question is whether the Court acting under Order 17, Rule 2 of the Civil Procedure Code in dismissing the suit on account of the default of appearance of the plaintiff on that day was legal and proper, or that it should have exercised its powers under Order 17, Rule 3 of the Civil Procedure Code.

7. Now Order 17, of the Civil Procedure Code generally deals with adjournments. Rule 1 thereof gives power to the Court to grant adjournment at any stage of the suit. Rule 2 then provides that where, on any day to which the hearing of the suit is adjourned, 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 may think fit. Now Order 9 referred to therein deals with appearance of parties and the consequence of non-appearance. In all the cases which come under Order IX, the party against whom a decree or order is passed in default of his appearance, can apply to the Court to have the ex parte decree or order set aside on the ground that he can show sufficient cause for his non-appearance. Ordinarily, therefore, as observed in the case of Ratanbai Shivlal v. Shankar Deochand, 24 Bom LR 775 : (AIR 1923 Bom 27) if a case appears on the board on an adjourned date for hearing, and there is default of appearance on the part of both or either of the parties, the Court must refer to Order 9 so as to ascertain the proper procedure to be followed, and there is no necessity whatever to have any recourse to O. XVII, R. 3. In those circumstances the Court, no doubt, can dismiss the suit in default of the appearance of the plaintiff on the adjourned date of hearing under O. 17, R. 2 read with Order 9, Rule 8 of the Civil Procedure Code. From the observations made at page 778 (of Bom LR) : (at p. 29 of AIR) however, it appears clear that while ordinarily O. 17, R. 2, will apply, and there is no necessity to have recourse to the stricter provisions of Rule 3 unless the hearing of the action has already commenced. Going further, the observations made therein also show that where the case has been part-heard and if an adjournment is granted, the provisions contained in Order XVII, Rule 3 can well be considered to apply. In other words, that decision contemplates applicability of provisions contained in Order XVII, Rule 3 of the Civil Procedure Code where the action has been part-heard and an adjournment was obtained. Another decision in the case of Bassayya Ayappa Sarghanachayar v. Allayya Maharudrayya, 27 Bom LR 477 : (AIR 1925 Bom 328), was also referred to. It lays down substantially the same view as in the earlier decision referred to. It may be observed that in bot