The main legal point established in the judgment is the distinction between Order XVII, R.2 and R.3 of the CPC in cases of non-appearance and failure to produce evidence, emphasizing the permissive and exceptional nature of R.3.

1. This appeal is by the defendants against the order dismissing their application under Order IX, R.13, CPC. to have the ex parte decree passed against them set aside. The plaintiffs and the defendants are members of an undivided Nair tarwad and the suit was for partition of and for recovery of the plaintiffs' share in them. The appellants contested the suit on the ground that certain items of the schedule properties were not liable to be partitioned. They also contended that the plaintiffs were entitled only to a lesser share than what they claimed. Issues were raised and the plaintiff was examined on 2nd September 1959. The case was then adjourned to 22nd September 1959 for the defendants' evidence. It was further adjourned to 21st October 1959 on the defendants' application. On 21st October 1959 the defendants were not present and there was no application for time on their behalf. Thereupon the arguments of the plaintiffs' counsel were heard and the case was adjourned to 23rd October 1959 for disposal and was disposed of on that day. On 6th November 1959 an application under Order IX, R.13 was filed by defendants 6 and 7. The application was supported by an affidavit by Govinda Menon the husband of the 6th defendant and the father of the 7th defendant. It was stated therein that on the 21st both the defendants were down with an attack of fever which prevented from appearing in court or giving necessary instructions to the counsel to apply for time and also to produce the records in support of their contention. The person who filed the affidavit gave evidence in support of the allegation and produced a medical certificate to that effect. The certificate showed that the 6th defendant and her husband the guardian of the minor 7th defendant were both laid up with severe influenza during the latter half of October 1959. Though the witness was cross examined nothing has been brought out in his evidence to doubt the truth of the facts spoken to by him. It is also seen that subsequently the 6th defendant died of the same disease.

2. The application for restoration was dismissed on the ground that as disposal of the case was under Order XVII, R.3, CPC. an application under Order IX, R.13 was not sustainable and also because the petitioners had not proved that they were prevented by sufficient cause from appearing in court on 21st October 1959.

3. We do not feel that the finding that the petitioners have not made out sufficient cause for their absence on the date of hearing is correct. The petitioner has given acceptable evidence and there was no evidence to the contrary. The certificate which is definite that the petitioners were having a severe attack of influenza during the latter half of October cannot be said to _ be vague or indefinite as observed by the learned judge. The learned counsel for the respondents sought to support the order only on the ground that the disposal of the case is under Order XVII, R.3 and the remedy of the petitioners to vacate the decree is only by way of an appeal and frankly conceded that if that position is not accepted the appeal has only to be allowed.

4. Thus the only question arising for determination in this appeal is whether the disposal of the case on 21st October 1959 is under Order XVII, R.3 or Order XVII, R.2 as contended by the revision petitioner. This is a case in which time has been granted by the court to the defendant to produce his evidence and the defendant not only failed to produce any evidence, but both the defendants and their counsel failed to appear in court. The question to be decided is whether in such a case the disposal of the case should be on merits as contemplated under R.3 or one under Order IX for non-appearance of the party. It is not a task free from difficulty and is a question on which there is difference of opinion between the several High Courts. To decide whether a particular case comes within the scope of R.2 or 3 the two provisions have to be read t