The non-availability of an advocate can be a sufficient cause for failure to appear, especially when the case involves substantial questions of law and complicated questions of fact.

MISRA, J.

( 1 ) TITLE Suit No. 24 of 1961 in the Court of the Subordinate Judge. Bolangir, had been fixed to 26-10-62 for hearing. On that day plaintiffs filed hazira. Defendant 1 filed a petition for time on the ground of absence of their witness. The Court passed orders to the effect. "put up on 31-10-62 for hearing. Parties to come ready. " on 31-10-62 the Court passed the following orders: "order No. 15 : Plaintiffs filed list of witnesses Defendant 1 files a petition for lime on the ground that his advocate is engaged in Sessions case. Time petition is rejected as frivolous Advocates being busy in another Court is no ground for adjournment Defendants to gel ready at once. Sd D. P. Sharma, sub Judge. "

"order No. 16: Plaintiffs ready Defendants are present and left saving that they would engage another lawyer as their lawyer is busy elsewhere the lawyer when sent for says that he has got powers but he had no instruction to act The defendants were given time for 10 minutes. Even though 10 minutes passed, they failed to turn up on repeated calls. Hence they are set ex parte. Plaintiffs are called upon to lead evidence. Sd D. P. Sharma. Sub Judge. "

The earlier the learned Judge examined evident in the side of the plaintiffs and decreed the suit with costs, along with another suit tried analogously with it, ex parte against the defendants On 21 11-62 defendants filed an application under order 9, Rule 13, C. P. C. for set ting aside the ex parte decree which was recorded as Misc. Case 91 of 1962. The miscellaneous case was dismissed by Sri m. J. Rao. Subordinate Judge, on 26-3-1963. Against this order dismissing the application under Order 9, Rule 13, C P. C the Miscellaneous Appeal has been filed.

( 2 ) THE application was dismissed on two grounds.

(i) Defendants failed to make out sufficient cause for their failure to appear; and

(ii) The ex parte decree passed by Sri D. P. Sharma was under Order 17, rule 3, C P C. against which an appeal lay and that Order 9, Rule 13, c. P. C. cannot he invoked for setting aside such a decree mr. Misra conlends that both the grounds are untenable.

( 3 ) ORDER No. 16 dated 31-10-62 passed by Sri D P Sharma does not show whether it was passed under Order 17, Rule 2 or Rule 3, C. P. C. Order No 16 was passed on a date to which the suit had been adjourned for hearing and parties had been directed to come ready with their evidence Order 17, Rule 3 lays down that where any party to a suit to whom time has been granted fails to produce evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith. Rule 2, on the other hand, prescribes that where on any day to which the hearing of the suit is adjourned, the parties or any of them fall to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by 0. 9, or to make such other order that it thinks fit. One of the marked distinctions between the two rules is that while in R. 2 there is emphasis on the expression "on the failure of the party to appear", there is no reference to it at all in Rule 3. The latter rule puts emphasis on failure of duty on the part of the party to do certain things as previously directed. It does not appear to cover a case where the party himself defaults to appear and in consequence thereof does not take the necessary steps as previously directed. The consensus of opinion therefore is that Rule 3 would apply to a case where the party is present in Courl hut committed types of defaults referred to in the Rule. 3a. On 20-10-02 the suit had been adjourned to 31-10-62 for hearing on the application of the defendants and the parlies had been directed to come ready with their evidence. One of the conditions prescribed in Order 17, Rule 3 is thus fulfilled. Defendants failed to produce their evidence on the date t