Raina, J.- 1. The following questions have been referred to this Bench for opinion by a Division Bench while dealing with this appeal :

(1) Whether it is open to the Court to proceed under Order 17, rule 3 of the Code of Civil Procedure in the absence of a party where the conditions laid down in the said rule are fulfilled and it appears just and proper to do so ?

(2) Where the Court has proceeded to decide the case on merits under Order 17, rule 3, of the Code of Civil Procedure in the absence of a party, is it open to the party aggrieved by the decision to file an application for setting aside the decree by an application under Order 9 of the Code ?

(3) Where the party aggrieved prefers an appeal against a judgment and decree under Order 17, rule 3 of the Code of Civil Procedure, is the Appellate Court bound to allow the appeal, merely on the ground that the Court had no jurisdiction to pass an order under Order 17, rule 3 and to substitute an order under Order 17, rule 2 of the Code, leaving the defaulting party to take recourse to an appropriate remedy under Order 9 in the lower Court; or whether the appellant cannot succeed unless he is able to show that there was sufficient cause for his non-appearance on the date of hearing?

2. This reference has been made apparently because of some conflict of authorities. In Madanlal v. Jai Narayan 1971 JLJ 693=AIR 1972 MP 8, it was held by a Division Bench of this Court that it is not open to the Court to proceed under Order 17, rule 3 of the Code of Civil Procedure in the absence of a party. In Sitabai v. Vidyawati 1972 JLJ 317=AIR 1972 MP 198, another Division Bench proceeded upon the view that it is open to the Court to proceed under Order 17, rule 3 of the Code even in the absence of a party. In Narbada Prasad v. Awadesh Narain 1973 JLJ 64l=AIR 1973 MP 179, the view expressed in Sitabai v. Vidyawati (supra) was ignored on the ground that the observations made therein were obiter dicta. It was to resolve this conflict that the Division Bench made this reference.

3. The answers to the questions before us depend upon the construction of rules 2 and 3 of Order 17 of the Code of Civil Procedure which has been the subject of conflicting decisions not only in this High Court but in other High Court as well. In Pichamma v. Sreeramulu ILR 41 Mad 236 (FB), it was held by a majority that rule 2 applies to all cases of absence of parties whether time was granted or not to do any of the acts mentioned in rule 3 while rule 3 applies only to cases where parties are present and commit default of the kind mentioned in the rule. Wallies, C. J., however, differing from the majority view expressed the opinion that rules 2 and 3 are not mutually exclusive and rule 3 may to applied even in the absence of the defendant. The aforesaid decision was relied upon by the Judicial Commissioner's Court at Nagpur in Bhivraj v. Janardhan 30 NLR 94. It was held therein that the proper way of interpreting rules 2 and 3 of Order 17 is to treat the disposal of the suit as having been made in accordance with rule 2 in cases when, on account of the nonappearance of the party, the explanation of his failure to perform the acts referred to in rule 3 was due but was not given on account of his absence. It was further observed that rule 3 of Order 17 presupposes the appearance of the party at whose instance the case was adjourned. In Dayalji v. Kedarnath AIR 1953 Nag. 222, Mudholkar, J. held that where it is not clear whether a particular case is under rule 2 or rule 3 of Order 17, the Court must lean in favour of holding that the case falls under rule 2.

4. The view that in the absence of a party, the Court should ordinarily proceed under rule 2 of Order 17 and not under rule 3 and where it is not clear under which provision the Court has acted, the disposal of the suit, in the absence of a party, must be construed as under rule 2 has been generally accepted in a number of decisions of this Court. In Maruti v. Gangadha