The distinction between O.17, R.2 and O.17, R.3 of the Civil Procedure Code, and the applicability of each rule to different situations involving the failure of a party to appear or prosecute a suit.

JUDGEMENT :- This civil miscellaneous appeal raises a point of distinction between O.17, R.2 and O.17, R.3 C.P.C. This distinction had become a matter of importance to the parties in this case in the way their suit was disposed of by the trial Court, when it was called for final hearing. What happened on that day had better be described in the words of the learned District Munsif himself.

"The suit is in list. Petition filed for adjournment by the plaintiff on the ground that the important witness had not come, rejected, Plaintiff present. Suit dismissed for non-prosecution with costs of defendants".

Against the dismissal of the suit, in the manner aforesaid, the plaintiff filed a regular appeal to the District Court, before the learned District Judge, the defendant raised a preliminary objection to the maintainability of the appeal. He contended that when the trial Court dismissed the suit, it did so in exercise of its powers under O.17, R.2 of the C.P. Code, in which event, no appeal lay from that decision. The learned District Judge, however, held that the trial Court's decision should be regarded as one falling under O.17, R.3. On this basis, he entertained the appeal. On the merits, he held that the trial Court was not justified in rejecting the request of the plaintiff for an adjournment so as to enable him to produce its witness. In this view, the learned District Judge set aside the decision of the trial Court and remanded the suit for an effective disposal.

2. The defendant has now brought this appeal against the order of remand passed by the learned District Judge. Mr. V. Krishnan, the defendant's learned counsel, urged that, in the circumstances of the present case the learned District Judge was wrong in holding that the plaintiff's appeal was competent. Learned counsel submitted that the dismissal by the trial court of the plaintiff's suit properly fell under O.17, R.2 of the Code and no appeal lay against that decision.

3. O.17, R.2 deals with the procedure to be followed by a trial court when parties fail to appear before it on the date fixed for hearing. The rule says that in such an event the court may proceed to dispose of the suit in one or other of the modes directed by Order 9 or to make such other order as it thinks fit. O.9, so far as is relevant to the facts of the present case, provides in Rule 8 that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed. On a combined reading of the two provisions of the Code, therefore, it may be observed that where on any date to which the hearing of the suit is adjourned the defendant appears but the plaintiff does not appear, then it would be open to the court to make an order that the suit be dismissed. It must, however, be noted that O.17, R.2 and O.9, R.8 can come into play only when the parties, or any of them, fail to appear. Where they do appear before the court, these rules would naturally have no application.

4. It is common ground in the present case that both the parties and their respective counsel were very much present in court on the day when the suit was called. O.17, R.2, therefore, cannot apply. The only other provision in the Code that has to be considered in a situation of this kind is O.17, R.3. This rule, as it stood before its recent amendment in 1976, provided for the manner in which the trial court should proceed when either party, although in full attendance before the court, nevertheless fails to prosecute the case. The rule applies in three different situations : (1) Where the party fails to produce his evidence; (2) where the party fails to cause the attendance of his witness; and (3) where the party fails to perform any other act necessary to further the progress of the suit. According to the learned District Judge, it is to this Rule 3 that the trial Court's decision in this case ought properly to be attributed.

5. I agree with