BERI, J.—This is a reference by a learned single Judge of this Court to resolve a conflict relating to the interpretation and consequent applicability of rules 2 and 3 of Order XVII of the Code of Civil Procedure which arise for certain decisions of this Court.

2. Before we formulate the question for answer it would be convenient to briefly notice the facts of the case before us. A suit for recovery of money was instituted before the Munsiff, Bikaner by a plaint dated 23rd May, 1955, on the basis of a deed of agreement concerning the sale and delivery of a lorry. The defendants filed a written statement dated 22nd February, 1956, denying the execution of the deed and the liability arising therefrom. The Munsiff Bikaner on 9th August, 1957 framed issues relating to (a) the execution of the deed and want of consideration; (b) the factum of delivery of lorry; (c) the penal character of the rate of interest claimed and (d) the relief. The suit stood fixed for the plaintiffs evidence on 19th September, 1957, on which date the plaintiff obtained an adjournment on payment of costs and the case was fixed for 19th October, 1957, on which date of hearing the counsel for the parties were present but the plaintiff and his witnesses were absent. The plaintiffs pleader reported no instructions. Cost was not paid. Plaintiffs evidence was closed. Defendants led no evidence and the arguments of their counsel were heard and the suit was dismissed.

3. The learned single Judge in his order of reference has made pointed reference to two decisions of this Court for consideration. The first is Ram Karan vs. Radha Mohan (1) and another is Shantilal vs. State(2). In Ram Karans case (1) the suit was fixed for the plaintiffs evidence and was adjourned at his request. On the adjourned date the plaintiff and his witnesses were absent and the suit was dismissed under Order XVII, rule 3, C.P.C. Bapna and Sharma, JJ. held that as there was no material on the record no decision on merits as envisaged by Order XX, rule 4 of the Code of Civil of Procedure was possible and, therefore, the order off dismissal should be deemed to have been passed under O. XVII, R. 2 C.P.C. In Shantilals case (2) after framing of the issues the case stood fixed for these plaintiffs evidence. At the plaintiffs request it was adjourned three times. The plaintiffs statement was recorded and at his request again the suit was adjourned on payment of costs. On the adjourned date the plaintiff did not appear. The District Judge, before whom the suit was pending, proceeded under Order XVII, R. 3 C.P.C. and dismissed the suit. It was urged in appeal before this Court that the District Judge had no jurisdiction to proceed under Order XVII, R. 3 C.P.C. Wanchoo C.J., as he then was, and one of us who decided the case, held that the District Judge was right in proceeding under Order XVII R. 3 C.P.C. It was also observed that, "......though we express with respect some doubt about the view that there must be material on record before a Court can proceed under Order XVII, R. 3 C.P.C. we need not express any firm opinion on the point in the circumstances of this case. In this case there were some materials and the Court looked into these materials before dismissing the suit under Order XVII, R. 3 C.P.C."

4. Before we notice the persisting divergence between the various High Courts of India regarding the applicability of Order XVII, R. 2 or R. 3 C.P.C. we might also notice a few other cases of this Court which have some bearing on the subject.

5. The first reported case on the subject is Amarsingh vs. Mst. Nandkanwar (3). In this suit for compulsory registration issues were framed and preliminary issues were decided. Negotiations for compromise were in progress and an adjournment was obtained to conclude the same. The plaintiff undertook to produce his own witnesses but on the adjourned date of hearing no evidence on behalf of the plaintiff was produced and the suit was dismissed under Order XVII, R. 3

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