1. The facts and circumstances leading to this revision petition are that a suit filed by the opponent in the Court of the Civil Judge, Class II, Jabalpur, claiming a decree for specific performance of a contract for re-conveyance of a house situated in Marhatal, Jabalpur, was dismissed by the trial Court on 6th December 1962 by making an order purporting 10 be under Order 17, rule 3 of the Code of Civil Procedure. On this date the evidence of the plaintiff's witnesses was to have been recorded. But when the case was taken up for hearing, the plaintiff and his counsel both were absent. The learned Civil Judge, therefore, dismissed the suit by recording the following order:

"I, therefore dismiss the suit u/o 17 R. 3, C. P. C. as adjournment was granted to the plaintiff on his request and he was to produce his witnesses but he has failed to do so........."

On the earlier case of hearing, that is, 29th November 1962, the plaintiff was present in person, but he asked for an adjournment on the ground that his counsel was ill. This request of the plaintiff was granted by the trial judge on the condition of the plaintiff paying Rs. 30 as costs to the defendant.

2. The plaintiff then preferred an appeal from the order of the trial judge dismissing his suit. The learned Additional District Judge, Jabalpur, who heard the appeal, allowed it and setting aside the order of dismissal passed by the original Court remanded the matter to that Court for disposal according to law. The learned Additional District Judge took the view that the order passed by the trial Court under Order 17, Rule 3 dismissing the plaintiff's suit was not any decision or the suit on merits; and that in fact there was no material on record to enable the Court to decide the case on merit. He also observed that the trial Judge did not consider the fact that the burden of proving the three issues framed in the suit was on the defendant-petitioner; and if the plaintiff was absent, he should have recorded the evidence of the defendant and then disposed of the suit on merits. It is against this decision of the Additional District Judge, Jabalpur, remanding the case that the present revision petition has been filed.

3. In my opinion, the decision of the Additional District Judge cannot be upheld. It is well settled that Order 17, rule 3 applies only if time is granted to a party for producing his evidence, or for causing the attendance of his witnesses, or for performing any other act necessary to the further progress of the suit and he fails to do at the adjourned hearing the act for which time was granted to him; and the Court can proceed to decide the suit forthwith. Rule 3 pre-supposes the appearance of the party at whose instance the case was adjourned but who is unable to give proper explanation for his omission to perform the specific act or acts for which the adjournment was granted at his instance. (See Motilal Joshi vs. Mohd. Shafi AIR 1956 Nag. 179 and Bhivraj vs. Janardhan 30 NLR 94. The expression "the Court may, notwithstanding such default, proceed to decide the suit forthwith" used in rule implies that there must be material on record to enable the Court to exercise its proper discretion by deciding the case on merits, and an order merely "dismissing the suit" because of the default of the party in performing the specific act or acts for which he had obtained time is not any decision disposing of the suit on merits.

4. In the present case, it is obvious from the order recorded on 29th November 1962 that on that date the hearing of the suit was adjourned under Order 17, rule 1 on the request of the plaintiff that as his counsel was ill and unable to appear in the Court the case should be adjourned. The request was granted but the adjournment was not granted for enabling the plaintiff to perform any of the acts spoken of in rule 3. When, therefore, the plaintiff and his counsel both failed to appear on the adjourned bearing, that is, on 6th December 1962, the C