Order under O. 17, R. 3, Civil P. C., can be passed only when the party is present, whereas an order under O. 17, R. 2, Civil P. C., can be passed when the party is absent.

1. This is a revision petition by defendant 1 against the order dated 23-6-51 of the Subordinate Judge, Bhopal, restoring the non-applicant no. 1 plaintiff's suit dismissed under O. 17, R. 3, Civil P. C, on 7-5-51 to file.

2. The suit was fixed for plaintiff's evidence on 21-4-51, but was adjourned, subject to payment of Rs. 25 as cost, to 7-5-51, as his witnesses were not summoned. On 7-5-51 the plaintiff was absent and his counsel stated that he had no instructions; the cost of Rs. 25 was also not paid and the Court therefore dismissed the suit under O. 17, R. 3, Civil P. C.

3. On 29-5-51 the plaintiff filed an application for restoration of the suit to file on the ground that he was taken ill and had gone to Bombay before 21-4-51 asking his counsel to seek an adjournment, that he was not informed of the order for cost or the date of the next hearing and hence could not give any instructions nor could he pay the cost; that the mention of O. 17, R. 3 in the order dated 7-5-51, was an accidental error for order O. 17, R. 2 and the application was thus tenable. Defendant 1 denied the allegations and contended that the application was not tenable and stated that the question be decided as a preliminary objection. The Subordinate Judge held that the dismissal should have been under O. 17, R. 2 and the application was, therefore, tenable, and without calling for evidence and merely relying on the affidavits filed on behalf of the plaintiff, restored the suit to file on 23-6-51. It is this order that is challenged.

4. The applicant contends that the order passed on 7-5-51 was properly under O.17, R. 3 and therefore, no application for restoration of the suit to file was tenable. The point for determination is whether the order should have been under O. 17, R. 2 or R. 3, Civil P. C. Rule 2 runs as below.

"Where, on any day to which the hearing of the suit is adjourned, the 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 O. 9 or make such other order as it thinks fit."

It would thus appear that the first essential, which the Court has to look into while dealing with R. 2, is the appearance of the parties. If the parties or any of them are or is absent, the Court can proceed to dispose of the suit in the modes available under O. 9. The crux of the question, therefore, is whether the party or parties was or were present in Court. Rule 3 of the order runs as below :

"Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the 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."

It would thus appear that the provisions of this rule are to be followed in the presence of the parties or party to whom time has been allowed. If the party or parties, to whom time has been allowed is or are absent, it is not this rule that is to be followed, but it is the R. 2 that is to be looked to. The wording of these two rules makes it perfectly clear that the one is exclusive of the other. Rule 2 applies when the party is absent i.e. does not appear while R. 3 applies when the party is present. In the case of the plaintiff his non-appearance would lead to the application of R. 2 and not R. 3 and, therefore, the suit was liable to be dismissed under O. 17, R. 2, on 7-5-1951, when it was fixed for hearing.

5. It is contended that on 7-5-1951 if the plaintiff had appeared and his witnesses were absent and the cost had not been paid, then the order would have been under R. 3 of O. 17 and therefore, he should not be placed in a better position by his non-appearance on that date and therefore, should not be allowed to take advantage of an application for restoration. This contention loses sight of the fact that if the plaintiff had appeared, it would have been possible for