ORDER Mithan Lal, J.
1. This revision filed by the defendant arises out of an appellate Order refusing to restore the case.
2. The plaintiff brought a suit for ejectment and arrears of rent and after number of adjournments the case was fixed for 20th July, 1956 for final hearing. On that date the defendant filed an application for adjournment on the ground of illness. This application was partly granted inasmuch as the defendant was given time till the 24th of July, 1956, for production of his evidence while the plaintiff's evidence was ordered to be recorded that very day. The defendant's counsel wanted time to prepare the case for cross examination of the plaintiff's witnesses till after lunch. That time was also granted. When the case was taken up after lunch the defendant counsel stated that he had no instructions. After recording plaintiff's evidence the case was adjourned to 24th July, 1956 for judgment but even on that date the defendant failed to appear. The case was decided on merits. An application for restoration which was made on 23rd August, 1956, has been dismissed by both the Courts below holding that the suit had been decided under Order 17, Rule 3 Civil Procedure Code and the remedy of the defendant, if any, lay in filing an appeal and not in restoration. It is against these orders that the present revision has been filed.
3. It is contended by Sri K.B.L. Caur that the Court had no jurisdiction to proceed to fix a date for judgment after having allowed time and that the case could not be decided under Order XVII, Rule 3. Both these contentions have no force.
4. The perusal of the order sheet goes to show that after the adjournment application was made the application was allowed to this extent that the defendant was allowed to produce his evidence on 24th July, while the plaintiff was allowed to produce his evidence on the same day. The defendant's counsel when asked for time to cross-examine the plaintiff's witnesses, time was allowed upto lunch. After lunch the defendant's counsel stated that he had no instructions. There were two adjournments granted to the defendant, one was for production of evidence on the 24th July, while the other was to cross-examine the plaintiff's witnesses after lunch, both of which were necessary for the further progress of the Suit. The defendant failed to take advantage and his counsel after taking time refused to cross-examine the plaintiff's witnesses on the ground that he had no instructions. This itself amounted to a default and is fully covered by Rule 3 inasmuch as time having been granted to the defendant to cross-examine the plaintiff's witnesses, which was necessary for the further progress of the suit, the refusal of the defendant's counsel to do so amounted to a default and consequently the Court was justified in deciding the case under Order XVII Rule 3, Civil Procedure Code.
5. The second default which was committed was on 24th July, 1956. Though it was a date for judgment, the defendant did not put in appearance nor did he put in any application either for cross-examination of plaintiffs witnesses or for setting aside the ex parte order or for production of his evidence. The suit which was decreed on 24th July, was rightly decided under Order XVII. Rule 3 because that was an adjourned date for two purposes as said earlier.
6. As regards the distinction between the Order XVII Rule 2 and Rule 3, Rule 3 will only apply where the provisions of Rule 2 do not apply. The two rules as amended by this Court are as follows:-
"3. Where in a case to which Rule 2 does not apply 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.
Rule 2 as amended is as follows:-
"2. 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 9 or make such other order as it thinks fit.
Where the evidence, or a substantial portion of the evidence, of any party has been already re corded and such party fails to appear on such day, the Court may in its discretion proceed with the case as if such party were present, and may dispose of it on the merits.
Explanation--No party shall be deemed to have failed to appear if he is either Present or is represented in Court by an agent or pleader, though engaged only for the purpose of making an application."
7. Paragraph 2 in this rule as well as the explanation were added by means of an amendment in 1945. In Rule 2 what is required is that the day on which the case is heard should be "the day to which the hearing of the suit is adjourned." This rule does not say in what manner the hearing has been adjourned. Adjournment of cases, whether on the nation of the Court or on the motion of any of the parties, if the party claiming adjournment is not a defaulting party, on the subsequent date, will be covered by Rule 2. Rule 3, however, specifically lays down that the adjournment should have been obtained by the party who failed to appear or failed to perform any other act necessary for the further progress of the suit etc. This, to my mind, gives the real clue to the difference between the two rules.
8. Paragraph 2 of Rule 2 will only become operative where the evidence or a substantial portion of the evidence of any party has already been recorded and then such party (that is whole evidence has been so recorded) fails to appear on such date, the Court has been given a discretion to dispose of the case on merits. The explanation given under this rule further gives the Court a power to dispose of the case on merits if the party is present personally or is represented in. Court by an agent or pleader though only for the purpose of making an application. It will thus appear that under para 1 of Rule 2 the Court may proceed to dispose of the suit ex parte or in one of the manners given in Order IX. This view is supposed by Ramcharan Lal v. Raghubir, ILR 45 All 618 : (AIR 1923 All 551). Under para 2 of that rule a case can be disposed of on merits provided where the evidence or a substantial portion of the evidence of the defaulting party has been recorded and further that such a party shall be deemed to be present if it is only for the purpose of making. an application. Rule 3 will, however, only apply where the adjoined date has been fixed either for the purposes of evidence or for the attendance of witnesses or for any other act necessary for the further progress of the suit on the application or request of the defaulting party.
9. There are a number of authorities in which these points have been discussed and they are; Ram Adhin v. Ram Bharose, ILR 47 All 181 : (AIR 1925 All 182), ILR 45 All 618 : (AIR 1923 All 551). Rukam v. Tara Chand, AIR 1922 All 68, Gulab v. Madhusudan Lal, AIR 1949 All 221, Qudrutullah v. Mohammad Kasim Khan, AIR 1952 All 208, Sri Krishen v. Radha Krishen, AIR 1952 All 652, Faiyaz Khan v. Mithan, AIR 1954 All 222, Mst. Jagga v. Kanhaiya Lal, AIR 1957 All 344, Dildar Husain v. AbduI Moid, AIR 1957 All 238 and Radhey Shyam v. Ghasita, 1958 All WR (HC) 76.
10. I do not think it worthwhile to discuss what has been laid down in all the aforesaid authorities. I content myself by referring only to three cases. In the case of Qudrutullah, AIR 1952 All 208 (supra), the date fixed for hearing was an adjourned date, but it had not been fixed on the motion of the defaulting party and consequently the Division Bench held that the provisions of Order XVII Rule 2 ,Civil procedure Code, applied. In the case of Sri Krishen, AIR 1952 All 652 (supra), the date for hearing had been fixed on the motion, of the defaulting party and it was laid down by the Division Bench that when a party asks for an adjournment of a ease on the date fixed for final hearing and then. fails to appear or fails to take steps for the necessary prosecution of the case, the proper rule to apply to such a case would be Rule 3 and not Rule 2. The latter case fully applies to the facts of the present case. In the case of Faiyaz Khan, AIR 1954 All 222 (supra), the same view was laid down by a Division Bench of this Court. A perusal of all the afore said authorities will show that the distinction between Rule 2 and Rule 3 has been maintained and that for the application of Rule 2 what is necessary is that the date should be merely an adjourned date but should not be on the motion of the defaulting party. In case the date of hearing was fixed on the motion of the party who subsequently failed to appear the proper rule to apply would be Rule 3 and not Rule 2. Rule 2 is thus broader in its application bemuse it will apply to all cases in which the date of hearing has been adjourned except those cases which are covered by Rule 3, that is where the date for final hearing has been fixed on the adjournment application of the defaulting party. It may also be mentioned in the end that even under: Rule 2 when paragraph 2 applies or the explanation applies the case may be decided on merits and it is a wrong motion that all cases disposed bf under Rule 2 are ex parte decisions.
11. In view of what has been said above the revision, fails.
12. It is hereby dismissed with costs. The stay order is discharged. Record of the case shall be sent back to the Court below as early as possible.