( 1. ) THIS order shall govern the disposal of Civil Revision no 151 of 1984 also.

( 2. ) THE petitioner, aggrieved by the order of 1st Civil Judge, Class II, shivpuri, dated 11-4-1984, (in C. R. No. 510/84) and dated 25-4-1984 (in c. R. No. 511 /84) has preferred these civil revisions, arising out of Civil Suit No. 27-A of 1981.

( 3. ) THE non-applicant-plaintiff filed a suit for eviction against the petitioner-defendant under the M. P. Accommodation Control Act. The non-applicant-plaintiff closed his evidence and the case was fixed for recording evidence of defendant on 4-2-1984. On the said date the Presiding officer was on leave so the case was fixed for orders. On 17-2-1984 the case was adjourned for 11-4-1984 for recording the evidence of defence. On the said date defendant and his witnesses were absent. The counsel for the defendant-petitioner Shri Mathur was present in the Court. When the court enquired from him as to why his client and his witnesses are absent, shri Mathur replied that he has no knowledge. So the Court instead of passing any order under Order 17, Rule 2 of the Code of Civil Procedure, passed the order under rule 3 of that Order and adjourned the case for arguments of plaintiff on 12-4-1984. The petitioner has challenged this impugned order in Civil Revision No. 510 of 1984.

( 4. ) ON 12-4-1984, the petitioner appeared in the Court and filed an application under Order 9, Rule 7 of the Code of Civil Procedure. The said application was dismissed by the trial Court on 25-4-1984 because according to it the order was passed under Order 17, rule 3 and not under rule 2 of that Order and hence an application under order 9 of the Code was not maintainable. The petitioner has challenged this order in Civil Revision No. 511 of 1984.

( 5. ) WHY the trial Court chose to pass the order under Rule 3 and not under Rule 2 of Order 17 of the Code is not mentioned in the impugned order. But it can be gathered that the presence of Shri Mathur, counsel for the defendant, may have been construed by the Court as the presence of the party, and also for failure to produce the defence evidence. The basic difference between Rule 2 and Rule 3 of Order 17 of the Code is that under the former, order should be passed if parties fail to appear on the day fixed, while under the latter, the Court may proceed notwithstanding either party fails to produce evidence. (Emphasis supplied ).

( 6. ) MERE physical presence of an advocate, under the above noted circumstances, would not be regarded as equivalent to the presence of a party. (See Nathu Hari Shankars case, AIR 1933 Nag. 369 ).

( 7. ) THERE is nothing on record to show that the suit was adjourned for evidence of the defence on 11-4-1984 at the instance of the defendant. It can be gathered that the suit was adjourned for 1 1-4-1984, by the Court because the Court itself so ordered. Therefore, the posting was not at the instance of the defendant. (See Narayans case, AIR 1982 Karoataka 159. ).

( 8. ) THE Court, therefore, instead of passing an order under Rule 3 should have passed an order under Rule 2 of Order 17 of the Code, because rule 3 clearly provides that if the parties are, or any of them is, absent, the court should proceed under Rule 2 of that Order. For passing an order under Rule 3 of the said order, it is pre-requisite that the party to whom time has been granted must be in default. If the case comes up not after grant of such time to the party Order 17, Rule 3 will have no application. The disposal will then be under Order 17, Rule 2, though it purports to be one on the merits. In such a case a defendant notwithstanding the purported disposal on the merits could seek to reopen the case under the provisions of Order 9 of the Code of Civil Procedure.

( 9. ) IN this case, the appearance of the counsel for the defendant can be taken as counsel reporting no instructions. In fact, it is in accord with his duty to the Court and in doing so, he shows ordinary courtesy to the co