N.K. Das, J. - (1.)PLAINTIFF Petitioner filed Money Suit No. 45 of 1972. The suit was posted to 10 -3 -1975 for hearing. Plaintiff was not ready on that date and a petition for adjournment was filed on his behalf. Defendant had summoned one witness from Berhampur and it was submitted on behalf of the Defendant that the witness is a costly one and his attendance cannot be procured easily in future and as such prayed that his evidence should be recorded even though the suit was adjourned. The Court allowed the prayer and evidence of that witness was recorded. The suit was then posted to 9 -6 -1975 for hearing. This was a morning Court. At about 7 a. m. the Court waited for 10 minutes and as both sides were absent, the Court closed the matter and posted the case to 9 -6 -1975 for judgment. Sometime thereafter on that very day Plaintiff attended the Court along with his witnesses and filed a petition to recall the earlier order of the day and to allow him to examine his witnesses. It was averred in the petition that while the Plaintiff was coming by a vehicle, the vehicle gave some trouble on the way and as such he was stranded and consequently could not attend the Court in time. An affidavit in support of the aforesaid averment was filed on the following day. The Defendant did not file any objection. The learned Munsif rejected the petition stating that as he bad already examined one witness, the provisions of Order 17, Rule 3 will be applicable and as such the petition filed by the Plaintiff was not maintainable. As against this order the present revision has been filed.
(2.)THE learned Munsif had not passed any order dismissing the suit either for default or on merit. He had only posted it for judgment and at that stage the Plaintiff came with his witnesses and requested the Court to hear the suit. There was no appearance for the Defendant. In view of these circumstances the question of application of provisions of Order 17, Rule 3 does not exist. The Court was sitting in morning and at about 7. 10 a. m. the case was closed. But sometime thereafter the Plaintiff appeared in Court with his witnesses and requested the Court to hear the suit. The Court should have given opportunity to the Plaintiff to adduce evidence as he had not finally disposed of the suit.
The question of application of Order 17, Rule 3 raised in view of the provisions of Order 17, Rule 3 of the Code of Civil Procedure Code.

Rule 2. Order 17 of the Code of Civil Procedure provides that 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. This position came up for consideration in several decisions of this Court.

In Mulia Maharana v. Narayan Patra : A.I.R. 1964 Ori 246, it was held that time had not been granted to the Plaintiff to produce his evidence or to cause the attendance of his witnesses or to prefer any other act necessary for the further progress of the suit. As directed in Rule 3, Order 17 of the Code of Civil Procedure it would be deemed that the Court has to exercise his jurisdiction in passing an order in terms of Order 9, Rule 8 which says that where the Defendant appears and the Plaintiff does not appear when the suit is called on for hearing. The Court shall make an order that the suit be dismissed. In the present case the Defendant also did not appear. Rule 3. Order 9 is applicable where both sides do not appear and in such circumstances the Court has to pass an order dismissing the suit. In Parikshit Sai v. Indra Bhoi : A.I.R. 1967 Ori 14, it has been held that:

One distinction between Rules 2 and 3 of Order 17 is that while in Rule 2 there is emphasis on the expression on the failure of the party to appear, there is no reference to it at all in Rule 3. The latter rule puts emphasis on failure of duty on the part of the party to do certain things as previously directed. It does not appear to cover a case where the party himself defaults to appear and in consequence thereof does not take the necessary steps as previously directed. Therefore, Rule 3 would apply to a case where the party is present in Court but committed types of defaults referred to in the Rule.

A Division Bench of this Court in M/s. Hindusthan Steel Ltd. v. Prakash Chand Agarwal : A.I.R. 1970 Ori 149, has held:

The 'default' referred to in Rule a of Order 17 is not one of non -appearance of one of the parties but of non -compliance with the various steps for the progress of the suit for which time has been granted to him. To such a case, Rule 2 can have no application and, if, as provided in Rule 3, the Court in such circumstance, proceeds to decide the suit forthwith, it would be decision on merits to which Order 9 has no application. Therefore, in order that the case would come under Rule 3, three conditions are necessary: (1) time must have been granted to a party to take all or any of the steps mentioned therein for the progress of the suit; (2) there must have been default in taking such steps; and (3) the party concerned should have appeared in Court.

Rule 2 provides that on the failure of any or both of the parties to appear on the adjourned date of bearing, two alternative courses are open to the Court. The first is to dismiss the suit for default of the Plaintiff is absent or to decree the suit ex parte in case of absence of the Defendant. The second course is, instead of following any of the above courses contemplated by Order 9, the Court may pass such other order as it thinks fit. The word 'appearance' has a well -recognised meaning and implies that the party is present at the trial either in person or through a pleader properly authorised on his behalf, and in either case, the party or the person authorised on his behalf must be present for the purpose of conducting the case. The mere physical presence of the party unless he is there for the purpose of conducting the case is nut "appearance" as contemplated in the rule nor does the presence on previous occasions constitute an appearance, unless he is instructed to represent him on the occasion in question and attends for that purpose.

To the above effect there is also a decision in Adhikari Devanidhi Das v. Krupanidhi Nanda, 1975 (41) C.L.T. 1117, wherein it has been held that Rule 2 applies when the party is absent whereas Rule 3 requires certain conditions to be fulfilled. The principles laid down in Parikshit Sai v. Indra Bhoi : A.I.R. 1967 Ori 14, Mulia Maharana v. Narayan Patra : A.I.R. 1964 Ori 246, M/s. Hindustan Steel Ltd. v. Prakash Chand Agurwal : A.I.R. 1970 Ori 149, have been reiterated in the case of Brajakishore Panda v. Mrs. Ashalata Panda, 1975 (2) C.W.R. 601. The subsequent decision of this Court is Smt. Santilata Dei v. Faimed Khatoon, 1976 O.J.D. 154, which has also followed the decisions reported in Parikshit Sai v. Indra Bhoi, A.I.R. 1967 Ori 14, Mulia Maharana v. Narayan Patra : A.I.R. 1964 Ori 246 and M/s. Hindustan Steel Ltd. v. Prakash Chandra Agarwal : A.I.R. 1970 Ori 149. It would thus appear that the consistent view of this Court is that when the Plaintiff is absent on a date to which the suit is posted for hearing, Rule 3 Order 17 is not applicable and in that case provisions of Rule 2 Order 17. Civil Procedure Code are applicable and the Court is to dispose of the case according to the provisions of Order 9, Code of Civil Procedure Code. To apply the provisions of Rule 3, Order 17, Code of Civil Procedure certain conditions are necessary which have been enumerated above. In view of the aforesaid provisions laid down by this Court, the finding of the learned Munsif that even though both sides were absent on the date to which the suit had been posted for hearing, provisions of Rule 3 Order 17 would be applicable because on a previous occasion he had recorded the evidence of one witness for the Defendant by exercising powers of Rule 16 Order 18, Code of Civil Procedure is not sustainable.

(3.)IN the result, the civil revision is allowed. The impugned order of the learned Munsif is set aside. He is directed to take up hearing of the suit by fixing a date and after giving notice to the parties. The lower. Court records be sent back immediately. As there is no appearance for the other side, there will be no order as to costs.