The distinction between Order XVII, Rule 2 and Rule 3 of the Civil Procedure Code is that Rule 3 will only apply where the provisions of Rule 2 do not apply, and that Rule 3 specifically lays down that the adjournment should have been obtained by the party who failed to appear or failed to perform any other act necessary for the further progress of the suit.

( 1 ) THIS revision filed by the defendant arises out of an appellate Order refusing to restore the case.

( 2 ) THE plaintiff brought a suit for ejectment and arrears of rent and after number of adjournments the case was fixed for 20th July, 1956 for final hearing. On that date the defendant filed an application for adjournment on the ground of illness. This application was partly granted inasmuch as the defendant was given time till the 24th of July, 1956, for production of his evidence while the plaintiffs evidence was ordered to be recorded that very day. The defendants counsel wanted time to prepare the case for cross examination of the plaintiffs witnesses till after lunch. That time was also granted. When the case was taken up after lunch the defendant counsel stated that he had no instructions. After recording plaintiffs evidence the case was adjourned to 24th July, 1956 for judgment but even on that date the defendant failed to appear. The case was decided on merits. An application for restoration which was made on 23rd August, 1956, has been dismissed by both the Courts below holding that the suit had been decided under order 17, Rule 3 Civil Procedure Code and the remedy of the defendant, if any, lay in filing an appeal and not in restoration. It is against these orders that the present revision has been filed.

( 3 ) IT is contended by Sri K. B. L. Caur that the Court had no jurisdiction to proceed to fix a date for judgment after having allowed time and that the case could not be decided under Order XVII, rule 3. Both these contentions have no force.

( 4 ) THE perusal of the order sheet goes to show that after the adjournment application was made the application was allowed to this extent that the defendant was allowed to produce his evidence on 24th July, while the plaintiff was allowed to produce his evidence on the same day. The defendants counsel when asked for time to cross-examine the plaintiffs witnesses, time was allowed upto lunch. After lunch the defendants counsel stated that he had no instructions. There were two adjournments granted to the defendant, one was for production of evidence on the 24th july, while the other was to cross-examine the plaintiffs witnesses after lunch, both of which were necessary for the further progress of the Suit. The defendant failed to take advantage and his counsel after taking time refused to cross-examine the plaintiffs witnesses on the ground that he had no instructions. This itself amounted to a default and is fully covered by Rule 3 inasmuch as time having been granted to the defendant to cross-examine the plaintiffs witnesses, which was necessary for the further progress of the suit, the refusal of the defendants counsel to do so amounted to a default and consequently the Court was justified in deciding the case under Order xvii Rule 3, Civil Procedure Code.

( 5 ) THE second default which was committed was on 24th July, 1956. Though it was a date for judgment, the defendant did not put in appearance nor did he put in any application either for cross-examination of plaintiffs witnesses or for setting aside the ex parte order or for production of his evidence. The suit which was decreed on 24th July, was rightly decided under Order XVII. Rule 3 because that was an adjourned date for two purposes as said earlier.

( 6 ) AS regards the distinction between the Order XVII Rule 2 and Rule 3, Rule 3 will only apply where the provisions of Rule 2 do not apply. The two rules as amended by this Court are as follows:

"3. Where in a case to which Rule 2 does not apply 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. Rule 2 as amended is as follows:-

"2. Where, on any day to which the hearing of the suit is