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.