Note:- In this case, the Judges of the Full Bench differ in their views. The majority view is taken by K. B. Asthana C. J., Satish Chandra and H. N. Seth, JJ. And the minority, by C. S. P. singh and R. L. Gulati JJ. The judgements in the case are, however, printed in the order in which they are given in the certified copy. The first judgement is not, therefore necessarily the judgement expressing the majority view. -Ed.

Judgement

ASTHANA, C. J. (Majorityview):- I am indebted to brothers Satish Chandra and C. S. P. Singh for the opinions they have prepared, which I had the benefit of perusing. They have very dextrously reviewed almost whole of the law and have very ably arrived at certain conclusions on the vexed questions which have defied solution and have been a prolific source of litigation in the subordinate courts and in the High Court without end. The decided cases of this Court noticed by my learned brothers show that despite all efforts we have only succeeded in cooking a soup of varied hue and colour and nobody has been the wiser as to what it is and what it tastes like. I share the view of brother C. S. P. Singh that the situation calls for modification of the relevant rules for achieving clarity and definiteness. There is no denying the fact that in the day to day working of the subordinate Courts in the exercise of their civil jurisdiction the problems posed will always arise in the disposal of the cases on the adjourned dates and the sooner the modification is done the better it would be for all. Considering the importance of the questions referred, I would like to add a few words of my own.

2. Order XVII, Rule 3 of the Code of Civil Procedure as amended by this Court stands as follows:-

"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 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". (underlining is mine).

3. Rule 3 as amended by this Court comes into play in a case to which Rule 2 does not apply. Thus the cases which are covered by Rule 2 of Order XVII will not fall within the ambit of Rule 3. Naturally it has to be found out first what are the cases which would be governed by Rule 2.

4. Rule 2 as amended by this Court stands as follows:-

"Where on any day to which the hearing of the suit is adjourned, 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 Order IX or make such other order as it thinks fit.

Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on such day, the court may in its discretion proceed with the case as if such party were present and may dispose of it on merits."

5. An analysis of Rule 2 will show that it would be attracted to cases:-

(i) Which come up for hearing on a date which was fixed after adjournment of the suit on a previous day;

(ii) The parties or any one of them fail to appear on the date so fixed;

(iii) Where the evidence or substantial portion of evidence of any party has already been recorded on a previous day and such party if fails to appear on the day so fixed a court can use its discretion to proceed with the case and may dispose of it on the merits treating that such party was present;

(iv) A party which is present and does not do anything else, will be treated as not having failed to appear; and

(v) A party represented in court by an agent or pleader, though engaged only for the purpose of making an application, will also be deemed not to have failed to appear.

6-9. Rule 2 substantially concerns itself when a party or any one of them fails to appear on the adjourned date. When both the parties or any one of them is absent on the adjourned date, Rule 2 squarely will