Raina, J.

1. This is a revision petition under section 25 of the Small Cause Courts Act.

2. The plaintiff-applicant filed a suit against the defendant-non-applicant for recovery of a sum of Rs. 149.91 P. on the basis of a document executed by the defendant on 18-6-63. On 7-10-67 the defendant filed his written statement denying the claim and the case was adjourned to 8-11-67 for evidence at the request of the plaintiff subject to payment of Rs. 4 as costs. On 8-11-67 the plaintiff was absent. His counsel Shri N. K. Jain appeared and requested for time till about 1 P. M. The case was again taken up at 1.15 P. M. when the plaintiff and his counsel both were absent. The Court, thereupon, dismissed the suit on the ground that the plaintiff had failed to adduce evidence though the case was adjourned at his request for that purpose. A decree was drawn up on the same day. On 11-1-67 the plaintiff filed an application under Order 9 Rule 9 C.P.C. for setting aside the dismissal on the ground that the plaintiff's counsel had by mistake noted a wrong date i. e. 28-11-67' instead of 8-11-67' and that is why the plaintiff could not appear on 8-11-67. This application was rejected by the trial Court on the ground that it was not maintainable because the suit was dismissed, under Order 17 Rule 3 C.P.C. and not under Order 9 Rule 9 C.P.C. Being aggrieved thereby the plaintiff-applicant has filed this, revision petition.

3. The main contention of the Learned Counsel for the applicant is that as the plaintiff and his counsel both were absent when the case was taken up for hearing the order of dismissal must be held to be one under Order 17 Rule 2 & not under Order 17 Rule 3 C.P.C In support of his contention he has relied upon a number of decisions of this Court. Unfortunately the other side is not represented in this case, but it appears to me that the law on this point is in a nebulous state because of the various conflicting decisions of this Court. It is, therefore, necessary to refer the matter to a larger Bench for an authoritative decision for facility of the litigant public in this State. The litigants often suffer because they do not know which remedy to choose and it often happens that the remedy chosen by them is ultimately held to be wrong.

4. I shall first deal with the decision relied upon by the Learned Counsel for the applicant. In Bhivraj v. Janardan 30 NLR 94: AIR 1933 Nag 370, Niyogi AIC (as he then was) held that Rule 3 of Order 17 pre-supposes the appearance of the party at whose instance the case was adjourned and that the proper way of interpreting Rules 2 and 3 of Order 17 is to treat the dismissal of the suit has having been made under Rule 2 in cases where on account of the non-appearance of the party the explanation for failure to perform acts referred to in Rule 3 was due but was not given on account of his absence. In Dayalji Wasanji and another v. Kedarnath Onkarmal & Company AIR 1953 Nag 222, it was held that where it is not clear whether a particular case is under Rule 3 or 2 of Order 17 the Court must lean in favour of holding that the case falls under the latter provision and not the farmer.

5. In Maruti v. Gangadhar Rao 1964 JLJ 559 : ILR 1966 MP 161 it was held by Dixit, C. J. that Rule 3 of Order 17 presupposes appearance of the parties at whose instance the case was adjourned but who is unable to give a proper explanation for his omission to perform the specific act or acts for which the case was adjourned. In coming to this conclusion reliance was placed on two earlier decisions of the Nagpur High Court in Motilal Surajmal Joshi v. Mohammad Shaft and another AIR 1956 Nag 179 and Bhivraj v. Janardhan 30 NLR 94 : AIR 1933 Nag 370. These decisions were followed by Bhave, J. in Lakhanlal v. Dasrulal 1967 JLJ SN 95. These decisions suggest that an order under Rule 3 of Order 17 cannot be passed in the absence of the party at whose instance the case was adjourned, and that where an Order is passed in the absence