A.K. Goswami, J.

1. This is an appeal under Rule 43 Rule 1(c) of the Code of Civil Procedure, 1908, preferred against the Order dated 25.6.2004 passed by the learned Additional District Judge, Nagaon in T.S. (D) Case No. 31/02 dismissing the suit for want of evidence as well as the order dated 05.08.2005, passed by the learned Additional District Judge in M.J. Case No. 120/04, arising out of T.S. (D) No. 31/02, whereby the petition filed by the plaintiff under Order 9 Rule 9 read with section 151 Code of Civil Procedure (in short "CPC") for restoration of T.S. (D) No. 31/02 was rejected. The appellant as plaintiff had instituted a suit against the respondents as defendants before the Court of the learned Additional District Judge, Nagaon under Section 7 of the Hindu Marriage Act, 1955 for a decree declaring that the respondent No. 1 is not a legally married wife of the appellant and that the respondent No. 2 is not the daughter of the appellant. The suit was registered and numbered as T.S. (D) No. 31/02. The respondent No. 1 had entered appearance in the suit and had filed her written statement.

2. By an order dated 31.05.04, it appears that last chance was given to the plaintiff to adduce evidence on 31.05.04. On 31.05.04 also, the plaintiff prayed for adjournment which was allowed subject to the payment of cost of Rs. 50/-. The case was fixed on 25.06.04. On that date also the plaintiff filed a petition which came to be rejected by the order dated 25.06.04, as noted hereinabove.

3. Against the said order dated 25.06.04, the plaintiff filed a petition under Order IX Rule 9 read with section 151 of CPC, which was registered as M.J. Case No. 120/04. The learned Trial Court rejected the said petition holding that the petition filed for restoration under Order IX Rule 9 of CPC was not maintainable in view of the fact that the order dated 25.06.04, passed under Order XVII Rule 3 of CPC, is an appealable order.

4. The appeal was posted for hearing on 26.04.12. On that day, Ms. P. Bhattacharya, learned counsel for the appellant was present. None had appeared for the respondents, though the name of the counsel was reflected in the Cause List. Having regard to the subject matter of dispute, this Court considered it appropriate to request Mr. B.C. Das, learned senior counsel, who was present in the Court, to assist the Court as an Amicus Curiae. Mr. Das was gracious enough to readily accept the request of the Court.

5. I have heard Ms. P. Bhattacharya, learned counsel for the appellant and Mr. P. Khataniar, who had also appeared subsequently in the hearing of the case for the respondents. Mr. B.C. Das, learned Amicus Curiae had also made elaborate submissions before this Court.

6. The question that has fallen for consideration of this Court is as to whether the order dated 25.06.04 was really an order dismissing the suit for default or an order dismissing the suit on merit for want of evidence, as noted in the said order dated 25.06.04. A perusal of the order dated 25.06.04 would go to show that the suit was dismissed for want of evidence consequent upon the rejection of the petition filed by the counsel for the plaintiff seeking adjournment on the ground that the plaintiff was unable to attend Court due to illness. The importance of this question lies in the fact that the remedies available against the order depend on whether it is made under Rule 2 or Rule 3 of Order XVII CPC.

7. Order XVII of CPC provides for provisions relating to adjournment. Order XVII has undergone substantive changes by the amendment of 1976. Prior to amendment, Order XVII read as follows :-

I. Court may grant time and adjourn hearing-

(1) The Court may, if sufficient cause is shown, at any stage of the suit, grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit.

Costs of adjournment - (2) In every such case the Court shall fix a day for the further hearing of the suit, and may make such order as it thinks fit with