JUDGMENT :

G.B. Pattnaik, J. - The short question, that appeal for consideration in this appeal is whether disposal of the suit in the present case in the absence of the defendant is one under Rule 2 of Order 17 of the CPC so that the provisions of Order 9 of the Code will be attracted, or is one under Rule 3 of Order 17, so that Order 9 will have no application at all.

2. Defendant in Money Suit No. 7 of 1983 is the appellant. The plaintiff filed the suit for realisation of Rs. 86, 911. 14 alleging that though the defendant's tender was accepted and the defendant was required to supply the items of goods between 7-11-1978 and 1-5-1979, but it failed to supply the, goods as a result of which the plaintiff sustained the loss. The defendant in its written statement took the stand that time was not of the essence of the contract and, therefore, there has been no breach of contract by it. It was further averred that in August, 1979, the officers of the plaintiff received most of the items and the cancellatioh of the contract by the plaintiff unilaterally is illegal and invalid.

The suit was adjourned to 10-10-1985 for hearing. On 10-10-1985 the plaintiff filed some documents along with a