Wanchoo, C. J.—This is an appeal by Shantilal against the order of the District Judge, Bhilwara, dismissing the application of Shantilal under O. IX, R, 9, C.P.C. for restoration of a suit alleged to have been dismissed for default.

2. The facts, which led the appellant to apply under O. IX, R. 9, may be briefly narrated. The appellant Shantilal had filed a suit in the court of the "District Judge, Bhilwara, against the State of Rajasthan, and the Customs and Excise Commissioner. Issues were framed and thereafter dates were fixed for the plaintiffs evidence. Three times the suit was adjourned on the plaintiffs application. On one of these occasions, the plaintiffs statement was recorded, thereafter, again, on the plaintiffs application, the suit was adjourned to the 16th of July, 1953, for further evidence of the plaintiff on payment of costs. On this date, the plaintiff did not appear. Consequently the court proceeded under O. XVII, R. 3, C.P.C. as the plaintiff had failed to produce his evidence in spite of the time granted to him, and after considering all the materials on the record, including the statement of the plaintiff, dismissed the suit.

3. Thereafter, the plaintiff presented an application to the court under O. IX, R. 9, for restoration treating the decree of the 16th of July, 1953. as a dismissal for default. This application has been dismissed by the District Judge on the ground that the order of the 16th of July, was a decree on the marits under O. XVII, R. 3. against which only an appeal lay, and that it was not a dismissal for default against which an application under O. IX, R. 9, could lie. Aggrieved by this order the plaintiff appellant has filed this appeal before us.

4. The main point that has been urged by learned counsel for the appellant, is that the court had no jurisdiction on the 16th of July, 1953, to proceed under O. XVII, R. 3, and that it could only proceed under O. XVII, R. 2, and therefore even if it says in its order that it was dismissing the suit on the merits under O. XVII, R. 3, that order really amounted only to an order of dismissal for default under R. 2. The argument is that wherever there is a default of appearance on an adjourned date, the only provision to apply is O. XVII, R. 2, and that R. 3, only applies when the party, against whom it is to be used, is present and has failed to produce its evidence, or to cause the attendance of its witnesses, or to perform any other act necessary to the further progress of the suit for which time had been allowed. In a nutshell it is said that even though an adjournment might have been granted to a party for a particular purpose, R. 3, will not apply if the party is absent on the adjourned date, for it cannot be said that it had failed to produce its evidence etc., at this presumption of failure cannot be drawn from its mere absence. In such a case it is urged that rule 2, which applies in terms to the absence of a party, would be the proper provision under which the court should proceed.

5. In this connection learned counsel for the appellant relies on the decision of the Madras High Court in Prativadi Bhayankaram Pichamma us. Kamisetti Sreeramulu (1) which is the leading case supporting. In that case, the Full Bench of the Madras High Court held that rules 2 and 3 of O. XVII, were independent and mutually exclusive, and that where the requisites of R. 2 were satisfied, R. 3 could not be applied. Therefore it was held that where a party was absent even though it might have been granted time to do somethig, the case could only be dealt with under R. 2, and that it was only when the party had been granted time and was present, and did not carry out the purpose for which the time was granted that rule 3 could be applied. It may be mentioned that the view taken in this case was accepted in the Allahabad High Court, vide Ram Adhin vs. Ram Bharose (2), and the Rangoon High Court vide Ko Tha Lin Bwin vs. Ko Hla Kye (3), and the Lahore High Court vide Ma

Click Here to Read the rest of this document