P L D 1963 (W (PLP)

5. The point for consideration in this case is whether the order of the trial Court comes within the purview of rule 2 or rule 3 of Order XVIL Rule 2 reads 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 IX or make such other order as it thinks fit." Rule (3) of Order XVII reads as under "(3) Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attend ance 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."

6. It has been held that to attract the provisions of rule 3 of Order XVII, it is necessary that- (1) the hearing was adjourned at the request of the party, (2) the said party made a default, (3) the adjournment was granted for the production of evidence or to perform any act necessary for the progress etc. of the suit, and (4) that the party failed to perform the said act.

7. Mr. Nathulal for the applicant-plaintiff contends that if the Court below had passed the present order on 9-1-1962 it could be said to have been passed under rule 2, but since it was assed on 8-2-1962, it would come within the purview of rule 3. 'I his contention was made solely on the ground that the matter was adjourned from the 9th of January 1961, to the 8th of February 1962, at the request of the plaintiff, although both parties were present at the time. Mr. Mulraj for the respondent has referred me to what I consider an extremely important ruling Enatulla Basunia v. Jiban Mohan Roy (I L R 41 Cal. 956). This case is on all fours with the present one and enunciates the principles for the distinc tion of what rule a matter will fall under. It has been held that the distinction between rule 2 and rule 3 of Order XVII is that while the former rule applies to hearings adjourned at the instance of the Court, the latter applies to hearings adjourned at the instance of a party, to whom time has been allowed to do some act to further the progress of the suit, but who has defaulted. There is yet another distinction between the rules. Where there are no materials on the record, the proper procedure to follow would be that laid down in rule 2, but if there are materials on the record, the Court ought to proceed under rule

3. To apply the procedure, therefore, laid down in rule 3 to a case, there must be the presence of both the elements, namely, (1) the adjournment must have been at the instance of a party and (2) ; there must be material on the record for the Court to proceed to decide the suit. The presence of one without the other does not justify the applica tion of rule

3. The same principle has been upheld in I L R 23 Cal.

738. In A I R 1943 Born. 321, it was held that Order XVII, rule 3 applies only if the previous adjournment was granted for any of the purposes mentioned in that rule, and the party committed default in compliance with it on the adjourned, date. It would not apply to a general adjournment under) Order XVI, rule 3 (A I R 1941 Bom. 83). Even in the case where a special adjournment is granted and the defendant fails to appear in person and his Pleader withdraws for want of) instructions, it would be a case of double default in so far as there is default of appearance, and the case would fall under Order XVII, rule

2. It was further held that "It is not correct to say that Order XVII, rules 2 and 3 are in direct conflict with each other. They are neither conflicting nor mutually exclusive. The scope of rule 2 is quite distinct from that of rule

3. Rule 3 contemplates a case in which the Court has materials before it to enable it 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 rule 3 clearly imply that the Court is to proceed with the disposal of the suit inspite of the default, upon such materials as are before it. Order XVII, rule 2 on the other hand, speaks of the disposal of the suit, and includes cases in which there might not be any materials before the Court to enable it to pronounce a decision on the merits. It is clear, however, that the contingency contemplated in rule 2 may happen in a case which falls within the letter of rule

3. It may well happen, for instance, that a plaintiff to whom time has been granted to produce evidence, not only fails to do so, but also fails to appear. In such a case, if there are no materials on the record, the appropriate procedure to follow would be that laid down in rule 2, but if there are materials on the record, the Court ought to proceed under rule 3 : (34 Cal. 235 rel. on)."

8. A I R 1947 Sind 1, which is a Full Bench Ruling, refers to Order XVII, rule 2, in connection with a commission being issued and the plaintiff being ordered to pay a further sum for expenses of the commission and declining to do so, the Court in consequence consigning the case to the record room, held that the Court was not justified in doing so, and pointing out the proper procedure, observed in passing (page 3) "But the question as to whether rule 3, Order XVII applies depends in the first instance, we think, upon a request being made by the party concerned to the Court itself. And we think there is so much judicial authority on this point that, as Carr, J., said in 6 Rang. 323 at p. 325, this point is no longer res integra ; and we should not, we think, differ."

9. It is clear in the context of the progress of the suit before the order dated the 8th of February was passed, that the matter was adjourned at the previous hearing, namely, the 9th of January 1961,at the request of the application made on behalf of the plaintiff. It was not the plaintiff who was the defaulting party in consequence of which the Court proceeded to hear this evidence and decided the matter in his favour on the due date. Bearing in mind the scope of rule 3 and the details of which I have already enunciated namely that the hearing was not adjourned to the 8th of February at the request of the defendant and that in consequence it was not the defendant who was the defaulting party nor did defendant pray for an adjournment on the ground of production of evidence and failed to do so, it cannot therefore be said that the impugned order falls under rule 3. 1 am firmly of the opinion in view of the law as laid down in the rulings previously referred to, and on the facts of the case as have emerged, that the order dated 17th May 1962, falls within the purview of rule 2 of Order XVIL.

10. The next point for consideration is whether this being an application under section 115, C. P. C., this Court has jurisdic tion to hear the matter, for it is the contention of Mr. Mulraj for the respondent that if it is held that the impugned order falls under rule 2 of Order XVII, this Court has no jurisdiction, and that it is within the purview of the trial Court to decide whether sufficient cause has been made out on behalf of the respondent. Reliance has been placed on A I R 1928 Lah. 427, where it was held that where a Court has jurisdiction to determine a question and does determine that question, it cannot be said to have committed a material irregularity because it has come to an erroneous decision. Where the lower Appellate Court set aside the decree that had been passed in the absence of the defendant holding that it was an improper decree under Order XVIL rule 2, C. P C., and the plaintiff applied in revision on the ground that the lower Appellate Court had no jurisdiction to set aside the decree as it was a decree on merits passed under Order XVII, rule 3, it was held that the lower Appellate Court had jurisdiction to determine the question whether the decree was passed under Order XVII, rule 2 or Order XVII, rule 3, and having decided that question it cannot be said to have exercised jurisdic tion not vested in it, even though it came to an erroneous con clusion. ' Mr. Nathutal for the applicant-plaintiff has referred me to the provisions of section 115, C. P. C., as recently amended and stated that the revision under these provisions can lie only on certain specific grounds. Reference has also been made by Mr. Nathulal to A I R 1943 Lah. 65 to support his contention that the word "case" in section 115, C. P. C., does not always mean the whole suit. It is of a very wide import, and` means any statement of fact judicially considered. This meaning is wide enough to include a decision of any substantial question in controversy between the parties affecting their rights, even though such order was passed m the course of the trial of the suit. An interlocutory, order deciding a question of this kind as distinguished from purely formal and incidental order is a `case decided' within the meaning of section 115, but it will be open to revision only if the other conditions expressly laid down C in section 115 are satisfied, and the order has resulted or is likely to result in such gross injustice or irreparable injury as cannot be remedied otherwise than by the exercise of the extraordinary jurisdiction of the High Court at that stage.

11. It cannot be held that the impugned order dated the 8th of February 1962, finally decides the controversy between the parties affecting their rights, for the case of the defendant has been set out in detail in the Written Statement filed before the trial Court and indeed, it is contended not only that there has been a settlement between the parties, but that the defendant has in his possession what purports to be the terms of the settle ment between the parties and the receipt of some amounts alleged to have been paid to the applicant-plaintiff in consequence of it. The impugned order dated 8th February 1962, can, therefore, merely be called a formal or incidental order, and cannot be considered to be a case decided as referred to in section 115, Cr. P. C.

12. Even on facts, the impugned order was justified the strongest point being that the learned A. C. M. did not contest .the fact that -respondent had made an oral request to him almost immediately after the impugned order was passed. This supports respondent's presence outside Court on 8-2-1962.

13. For the reasons given above, there is no doubt in my mind as to the correctness of the order of the learned Civil Judge and A. C. M. Hyderabad that rule 2 of Order XVII came into operation and that, therefore, the ex parte decree passed against the defendant should be set aside. I, therefore, dismiss this revision application with no order as to costs. K. B. A. Petition dismissed.