- (1.) This revision petition arises out of an application filed by the second defendant (petitioner before me) under Order 9 Rule 13 C. P. C. The facts material for the purpose of appreciating the contentions raised before me are that O. S. 193/1957 was posted for trul on 2-1-1960. The second defendant filed an application for adjournment on that date. Rejecting his petition he was set ex parte After completing the recording of the deposition of P.W.1 the trial court proceeded to deliver thejudgment. It is to set aside thar decree that the petititn was nied uudei Order y Rule 13 C.P.C by the second defendant. This petition was resisted by the plaintiff not only on merits but also on the ground that the decree passed on 2-1-1960 falls under Order 17 Rule 3 C. P. C. and as such no application under Order 9 Rule 13 C. P, C. lies. The trial court epbolding the contention of the plaintiffs dismissed the petition, It held that the judgment and decree dated 2-1-1960 tell under Order-17 Rule-3 C. P. C. and. therefore no application under Order 9 rule 3 C.P.C. was maintainable It did not decide the application on merits Dissatisfied with that order, the second defendant cauled the matter in appeal. The learned Subordinate Judge, Kakinada dismissing the appeal agreed with the conclusion of the trial court, that the judgement of the 2nd January 1960 fell under Order 17 Rule 3 C. P. C. and as such, no application under Order 9 Rule 3 C. P. C. was maintainable. The appellare court also found that the application tor adjournment was rightly rejected and consequently observed that there are nc grounds to set aside the ex parte decree. It is this view of the learned Subordinate J tdge that is now assalled in this Revision petition. The principal contention of Sri K. B. Krishnamurti the learned counsel for the petitioner, is that when the petitioner was net prpsent after his application for adjournment was refused and when he was set ex rarte and when the judgement was given alter examining PW. 11 behind rhe back of the petitioner, such a judgment cannot fall under Or.17 R. 3 C P. C; that it is a judgment given under Or 17 R. 2 C. P, C and that the petitioner was tight in filing an application under Order 9 Rule 13 C. P. C.
(2.) It is, however contended by Sri N. Bapiraju, the learned counsel for the Respondents that once the Petitioner, who was present, applied tor an adjournment after refusal of which he left the court, to such a case, it is order 17 Rule 3 C. P. C. that applies and that no application under Order 9 Rule 13 C. P. C. is maintainable. There cannot be any doubt that in order to attract the provisions of Order 17 Role 3 C. P. C. two rhings are necessary. Firstly, the party must be present and secondly be must be guilty ot any one of the three things mentioned in Rule 3 C P. C. It is now beyond doubt that the mere presence in court of a party or his counsel not duly instructed cannot be considered as an appearance of the pacty within the meaning of Rule 3 C. P. C. It is also now clear that, if the application falls both under Rule 2 and Rule 3 C. P. C. the judgment will be treated as falling under Rule 2 for the purpose oi the remedy.
(3.) Viewed in this background I have no hesication to hold that when a party applies for seeking an adjournment, on the refusal of which he absents hunself and is, therefore, set ex parte and does not participate in further proceedings which went before the Court that day resulting in a decree, such a decree cannot be said to be tailing under Order 17 Rule 3 C.P.C. To attract Rule 3. C. P. C. the party must be present at th time when acoial proceedings go on. If, before the commencement of the proceedings his request for an adjournment was refused and, he absents himself thereafter, his position cannot be in any way worse than the position of a person who absents himself ftorn the vtry beginning.Suppose, in this case instead of personally presenting the application he had sent an application seeking the adjournment and that application had been rejected, it could not have been argued that the further proceedings which went on after setting him ex parte and resulted in a decree at the end, were under Order 17 Rule 3 C. P. C. If that is so, then if a person, merely appeared for the purpose of seeking an adjournment on the refusal of which he did not participate in the further proceedings, it cannot be said that he was present and participated in the proceedings particularly when he was expressly set ex parti. What has happened in this case is that after his application for adjournment was rejected, he went out and did not participate in further proceedings. It is clear from the jugments of the Court below that in his absence, P. W. I's deposition was completed. Nobody was present on behalf of the second defendant and no witness of his was present, and the court proceeded to deliver the judgment ex parte. I am clear that this is not the cate which tails under Order 17 Rule 3 C. P. C I am tortitied in this conclusion oi mine by the judgment of the Madras High Court.;