An order of dismissal passed under Order 17, Rule 2, Civil Procedure Code, can be set aside and the suit can be restored under Order 9, Rule 9, Civil Procedure Code.

This is a revision petition filed by Ram Ratan defendant against the order of the District Judge, Bhind, who reversed the finding of the Subordinate Judge, Bhind and restored the plaintiff's suit.

2. The material facts of the case leading to this revision are that in the plaintiff's suit issues were framed on 9-3-1946 and his witnesses were summoned on several dates on which they appeared put their statements could not be recorded due to several reasons. On 23-5-1947 the Subordinate Judge ordered the plaintiff to pay the process fee and he fixed 28th June for examining the witnesses. On this date witnesses were not present as the process fee was not paid. The Subordinate Judge dismissed the suit for default. Application for restoration was also dismissed by him, as he held that the plaintiff's illness was not proved and no sufficient reasons were given for not depositing process fee in time. In appeal the learned District Judge reversed the finding and ordered the restoration of the suit on payment of costs.

3. On 13-2-1950 the question for determination before Shinde, J., was whether the order of the first Court dated 28th June 1947 was made under Section 159 of the Gwalior Civil Procedure Code or under Section 160. These two sections of the Gwalior Civil Procedure Code correspond to Rules 2 and 3 respectively of Order 17 of Indian CPC. If the order was made under Rule 3 of Order 17, the order will be held to be on merits and the remedy was only by way of appeal; on the contrary, if the order was passed under Rule 2 an application to set aside the order of the dismissal is the proper remedy.

4. I have heard the arguments on this question It is true there has been conflict on the point and there has been divergence of judicial opinion, which has been noted in note No. 3 under Order 17, Rule 3 in Volume 2 of Chitaley's Commentary.

5. It is difficult to attempt by refinement or subtlety to reconcile cases which are not capable of being reconciled. If one has to take the whole weight of the authorities the balance of authority is in favour of the view that the power conferred on the Court under Order 17, R. 3 is a very drastic power and it restricts very greatly the unsuccessful party's remedy for redress, and should be used only in exceptional cases. 'Tekchand Nenoo Mal v. Kalu Sing Manju Sing', AIR (30) 1943 Sind 94. Where a default takes place both within the meaning of Rr. 2 and 3 and there is not enough material on the record to entitle the Court to proceed to judgment, the Court should proceed under R. 2. 'Har Gopal v. Harish Chandar', AIR (6) 1919 Lah 419. To apply the procedure laid down in R. 3 in a case there should be presence of both' the elements, viz., (1) the adjournment must have been at the instance of a party and (2) there must be materials on the record for the Court to proceed to decide the suit. The presence of one without the other does not justify the application of R. 3. 'Brojendra Nath v. Promotha Bhusan', AIR (20) 1933 Cal 412. The two rules are neither conflicting nor mutually exclusive. The relation between the two Rules, which correspond to Ss. 157 and 158. respectively, of the former Code, was explained to 'Mariannissa v. Ramkalpa Gorain', 34 Cal 235 and has been relied upon by the Full Bench of the Bombay High Court in 'Basalingappa Kushappa v. Shidramappa Irappa', AIR (30) 1943 Bom 321. According to these decisions :

"Rule 3 contemplates a case in which the Court. has materials before it to enable it to proceed to a decision of the suit. The mere fact of a party making default in the performance of what he was directed to do would not lead to the dismissal of the plaintiff's suit, if he was the party in default, or the decreeing of the claim against the defendant, if the defendant was the person, who made the default; the words 'notwithstanding such default' in R. 3 clearly imply that the Court is to proceed with the disposal of the suit in spite of the default, upon such materials as are before