Order 17, Rule 3 of the Civil Procedure Code applies even if the defaulting party is present in court, while Order 17, Rule 2 applies only when the defaulting party is absent.

1. This second appeal is rested against the judgment and decree the Senior Subordinate Judge, Karnal, exercising enhanced appellate powers, by which the plaintiff-appellant s first appeal was dismissed on the ground of non-maintainability.

2. The plaintiff-appellant is the Municipal Committee, Thanesar, which filed a suit for possession of a site against defendant-respondents claiming to be its owner and alleging that it is in illegal occupation of the respondents. The suit was contested by the respondents and on the pleadings of the parties a number of issues were framed by the trial Court. One witness of the plaintiff was thereafter examined as PW 1. On August 8, 1973, the case was adjourned to 7-11-1973 for the appellant s evidence. On the date fixed i.e. 7-11-1973, neither anyone appeared on behalf of the appellant-Municipal Committee nor the remaining evidence was led. The trial Court thereupon closed the appellant s evidence and dismissed the suit on merits holding the issues against the appellant. Although it was observed in the order by the trial Court that the appellant s evidence was being closed under O.17, R.2 of the Civil P. C. but after appraising the material on the record it was not clarified as under what provision of law the suit was being dismissed on merits. The appellant-Municipal Committee assuming that the trial Court had dismissed its suit tinder O.17, R.3 of the Civil P. C. filed an appeal which was dismissed by the lower appellate Court on arriving at a conclusion that the order of the trial Court fell under O.17, R.2 of the Civil P. C. which could not be appealed against. It was observed that the proper remedy was to have moved an application under O.9, R.13 of the Civil P. C. The legality of this decision of the lower appellate Court has been challenged in the instant second appeal.

3. The vital point for determination in this appeal is whether the impugned order of the trial Court was passed under R. 2 or under R.3 of O.17 of the Civil P. C. There is no dispute that an order under R. 2 is not appealable but an order under O.3 can be appealed against.

4. It will be relevant to point out here that the order of the trial Court having been passed in 1973 the provisions of Rr. 2 and 3 of O.17 of the Civil P. C. which were existing before the Civil P. C. (Amendment) Act, 1976 will, therefore, have to be looked into. The relevant provisions are quoted as under-

"O.17, R.2- Procedure if parties fail to appear on day fixed:-

Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by O. IX or make such other order as it thinks fit. Order 17, Rule 3:- Court may proceed notwithstanding either party fails to produce evidence etc.- Where any party to a suit to whom time has been granted fails to produce his 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."

5 It is lucidly clear from these provisions that R. 2 would apply to those cases where on a date fixed the parties or any one of them failed to appear. In that case the Court may proceed to dispose of the suit in one of the modes described in O.9 of the Civil P. C. The application of R.3 would be in those cases where any party to a suit whom time has been granted failed to produce evidence or to cause attendance of his witnesses or to perform any other act necessary to the further progress of the suit for which time had been allowed. In such a situation the Court would be empowered to decide the suit on merits forthwith.

6. From the facts of the case narrated above there can be no manner of doubt that the trial Court had dismissed the appellant s suit under R. 3 of O. 17 of the Civil P. C. and not under R.2 as held by th