ORDER

1. This miscellaneous appeal is filed by the plaintiff under Order 41 rule 1(c) of CPC being aggrieved of order dated 29.10.2018 passed by learned 19th Additional District Judge, Bhopal in MJC No.481/2018 refusing to entertain an application under Order 9 rule 9 of CPC on the ground that suit was dismissed in view of lack of evidence vide order dated 11.7.2013 and said being passed under Order 17 rule 3 of CPC will be covered by the decision of Calcutta High Court in the case of Lalit Chandra Das and others v. Sushil Chandra Guha and another, AIR 1980 Calcutta 148 , therefore, appeal will be maintainable against the said order and not an application under Order 9 rule 9, CPC.

2. This Court requested Shri Ravish Chandra Agrawal, learned senior Advocate to guide this Court as to the correct legal position in this behalf.

3. Shri Ravish Chandra Agrawal, learned senior Advocate, graciously accepted and informed that in terms of the law laid down by Hon'ble Supreme Court in Mohandas and others v. Ghisia Bai and others, AIR 2002 SC 2436 in which it is held that if suit is fixed for leading evidence by plaintiff, instead of leading evidence, neither plaintiff nor his witnesses were present, then suit has to be dismissed under Order 17 rule 2 of CPC and not under order 17 rule 3 of CPC. It is held that Order 17 rule 2, CPC provides for procedure if parties fail to appear on day fixed. It provides that there, on any day to which 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 order IX or make such orders as it thinks fit.

4. Order 17 rule 3 of CPC provides that where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witness, 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, if the parties are present proceed to decide the suit forthwith or if the parties are, or any of them is, absent, proceed under rule 2 of CPC.

5. Shri Ravish Chandra Agrawal, learned senior Advocate, submits that the provisions of Order 18 rule 4 of CPC was substituted by Act 22 of 2002 in regard to recording of evidence, Legislature probably did not take into consideration provisions contained in Order 17 rule2 and 3 of CPC inasmuch as filing of affidavit under Order 18 rule 4 of CPC will mean that evidence has been produced, therefore, there were only two courses open namely to proceed to decide the suit forthwith or proceed under rule 2 of CPC.

6. Thus, it is evident from the facts of the present case that since evidence under Order 18 rule 4 of the CPC was already filed in lieu of examination-inchief by the plaintiff witnesses, then in the light of law laid down by Supreme Court in Mohandas and others v. Ghisia Bai (supra) dismissal of the suit is to be an order passed under Order 17 rule 2 of the CPC and not under order 17 rule 3 of the CPC.

7. Since the order of dismissing the suit for want of prosecution after filing of affidavits under Order 18 rule 4 of the CPC is an order under Order 17 rule 2 of the CPC and Order 17 Rule 2 CPC provides 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 order IX or make such other order as it thinks fit, therefore, remedy for the petitioner was to invoke provisions contained in Order 9 of the CPC. That remedy was since rightly exercised by the appellant, learned Court of 19th Additional District Judge, Bhopal erred in treating the dismissal of the suit for want of prosecution under Order 17 rule 3 of the CPC and has inappropriately held that suit having been dismissed invoking provisions under Order 17 rule 3 of the CPC, application under Order 9 rule 9 of the CPC will not be applicable.

8. Impu