Govinda Menon, J. -
(1.) This is an appeal against the order of the District Judge of Bellary refusing to set aside an order dismissing a suit for default. What happened was that on 8- 9-1950 when the suit came on for hearing the predecessor of the learned Judge, from whose order this appeal is filed, passed an order stating that certain issues had been decided against the contentions raised by the defendants, and that the suit would stand posted to 18-9-1950 for the plaintiff's rejoinder. On 18-9-1950 there was no appearance, and the learned District Judge thereupon passed an order in the following terms:
"Issues 2 and 7: Finding negativing the contentions of the defendants was given by this court on 8-9-1950. Gurusanthayya, son of Kariveerappa vs. Setra Veerayya and Ors. (03.01.1952 - MAD... Page 1 of 4 Issue 3 : The plaintiff and his pleader are absent. I decide the third issue in the affirmative." In the result the suit was dismissed with costs. An affidavit in support of the application to set aside the order of dismissal for default was sworn to by Mr. D. Venugopalachariar, pleader for the plaintiff-appellant, and therein he states that on 18-9-1950 the rejoinder was ready, typed and signed by the plaintiff and was in the bundle of records relating to O. S. No. 2 of 1947. This along with another bundle was sent by the advocate through his clerk in order that it might be filed in court at the proper time through any of the juniors of Mr. Venugopaiachariar, who would be present in that court. The learned pleader further states that at 11.30 a.m. the District Court passed an order stating that the rejoinder had not been filed, and that, as the plaintiff and his pleader were absent, the third issue was decided in the affirmative, and the suit was accordingly dismissed with costs. The reason why Mr. Venugopalachariar could not be present was that he had been engaged in some land acquisition proceedings before the Subordinate Judge's Court, and that his juniors were engaged in the Munsif's Court at Bellary. According to the learned pleader, whenever he had work in the District Court, either he or one of his juniors would be usually present in Court to attend to that kind of work. But on that particular day it unfortunately happened that the junior, Mr. Chenna Basappa could not be present in the District Court, as he had to appear in the Munsif's Court. These facts have not been seriously disputed by the advocate who appeared for the defendants in the court below. The only contention put forward thera was that the dismissal of the suit was under Order 17, Rule 3 and not under Order 17, Rule 2, and that therefore the provisions of Order 9, Rule 9 would not apply to the facts of the present case.
(2.) In our opinion, the learned District Judge erred in not accepting the statements contained in the affidavit of Mr. Venugopaiachariar. We are of opinion that there was sufficient reason for the non-appearance of the plaintiff or his pleader when the case was called in court. It might be remarked that the usual procedure in such circumstances would be not to file the rejoinder earlier in the office, so that the same might be sent over to the court when the case is taken up, but to present the rejoinder in court through the Bench clerk. Mr. Venugopaiachariar thought that he could resort to that step instead of filing it earlier. Even if that is not the proper procedure, still there is an error of judgment and inadvertent mistake and we cannot ascribe any wanton culpability to the pleader in this matter. We are satisfied that the plaintiff had sufficient reasons for not appearing in court when the case was called on 18-9- 1950.
(3.) But the really important question is whether Order 17, Rule 2 or Order 17, Rule 3 applies. The distinction between the two rules is that in order that Order 17, Rule 2 should apply, a party or his pleader should not be present in court, whereas in the case of Order 17, Rule 3, even if the party or his pleader is present in court if there is a failure to produce evidence, to cause the attendance of witnesses or to perform any other act necessary to the further progress of the suit Order 17, Rule 3 applies. That this is the correct distinction is exemplified by a decision of this court in -- 'Ellammal v. Karuppan Chetti', 70 Gurusanthayya, son of Kariveerappa vs. Setra Veerayya and Ors. (03.01.1952 - MAD... Page 2 of 4 Mad L J 688. In that case after a suit had been proceeded with for a certain time and after some witnesses were examined, the suit was adjourned to a further date. On that date neither the defendants nor their vakil appeared, and therefore an 'ex parte' decree was passed. On an application to set aside the 'ex parte' decree, the court of first instance held that Order 17, Rule 3 applied, and on appeal to the High Court, Venkatasubba Rao and Cornish JJ. had to decide the question, and they observed as follows:
"To define the line of division between Rule 2 and Rule 3 of Order 17, may in some cases be difficult, but in this case, the facts do not seem to present much difficulty. The learned Judge's order is not particularly lucid, but the ground of his decision apparently is, that as the adjournment of the 30th July, was granted for the specific purpose of enabling the defendants to examine a certain witness, the provision that applies is Rule 3. No doubt that rule provides that where lime has been granted, for the performance of an act, such as causing the attendance of a witness and the party fails to perform that act, in such a case the court may, notwithstanding such default proceed to decide the suit on the merits; but that does not mean that where the parties themselves fail to appear, the operation of the more specific provision contained in Rule 2 is excluded. In other words, the proper way of construing Rule 3 would be that where no default occurring under Rule 2, default occurs under Rule 3, the court should proceed under the latter provision & dispose of the case on the merits; but if the default consists in non-appearance, it is Rule 2 which deals with such a case specifically, that in terms applies. It is unnecessary to cite authority beyond referring to -- 'Pichamma v. Sreeramulu', 41 Mad 286 (FB).";