Bapna, J. - (1.) THIS is a revision by the defendant in a case pending in the court of Civil Judge, Sirohi.
(2.) THE opposite party Shah Gulab Chand sued the petitioner Devichand for recovery of Rs. 3473/3/ -. According to the pleadings and the issues raised in the case, the defendant was to lead his evidence first. On 30th May, 1950 the date fixed for producing evidence, the defendant was not present and his lawyer wanted an adjournment. This was refused and the evidence for the defence was deemed to be closed. THE plaintiff wanted adjournment to produce his evidence and the suit was adjourned to the 10th July 1950. On the 5th July, the defendant moved the court for setting aside the earlier order of 30th May, 1950 closing his evidence, and requested for being allowed to produce evidence on the 10th July for which the case had been adjourned. In the meanwhile, Mr. M. J. Mardia, who was the Civil Judge, who passed the order on 30th May was succeeded by Mr. Mukat Behari Lal and this application came up before him for decision. Mr. Mukat Behari Lal recorded an order on the 10th of July that the order of 30th May appeared to him to have been passed by his predecessor under 0. 17, R. 3 of the Civil Procedure Code, and he could not interfere in that order. On behalf of the defendant, the present revision was filed against the order of the 10th July, 1950, and in the alternative against the order of the. 30th May, 1950. It was argued that the learned Civil Judge, Mr. Mardia, who passed the order on 30th May, did not consider the circumstances in their proper perspective in passing that order. According to the affidavit produced by the defendant along with his application on 5th July, the case was fixed for evidence on the 30th April, but the Civil Judge went on leave on or about 15th April and a notice was put up on the Notice Board that parties should not call the witnesses till the 30th April. On the 29th April, however, the Civil Judge returned and held his office and adjourned the case to 15th of May The Civil Judge again went on leave on 1st May, and the Advocate for the defendant moved the District Judge on 15th May for an intimation whether the witnesses were to be called on 15th May meaning thereby asked for information whether the Civil Judge would return in time and hold his court on 15th May. The District Judge directed that the witnesses need not be called. On the 15th May, the Civil Judge, however, came back from leave and was in Court on that day. The Advocate for the defendant wanted the case to be fixed for 30th May. On this date, the defendant could not appear as he lay ill at Adoni in Billari District in Madras Presidency, and was not in a position to arrange for the production of the witnesses. An application & a medical certificate was produced in the court. The learned Civil Judge, however, recorded an order that even if the defendant was ill, there was no reason for the non-production of other witnesses and it was also recorded that the defendant should have taken steps to summon the witnesses all of whom were residents of Sirohi District. It was contended by the learned counsel for the defendant that the summonses were not taken as on an earlier date the witnesses had absented in spite of the service of the summons and that what the defendant proposed to do was to come in time and arrange to produce the witnesses himself, and that in any case, as the case was adjourned at the request of the plaintiff, an opportunity should have been allowed to the defendant to produce his evidence before the plaintiff began his evidence. The next contention of the learned counsel for the defendant is that in making the order of 10th July 1950, the learned Civil Judge refused to exercise jurisdiction on an erroneous view that an earlier order was the order under O. 17, R. 3 of C. P. C. In my opinion, the second contention must prevail, and in view of the fact that I am sending this case to the present Civil Judge for disposing of the petition of the defendant to vacate the order of the 30th May 1950, I do not propose to express any opinion as to the correctness or otherwise of the order of the 30th May. O. 17 R. 3 provides that "where 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. " The last lines in the rule are important. An order would be deemed under O. 17, R. 3 when the suit is decided and not when it is adjourned as is clear from the rule itself. This is a permissive rub and where the suit is not decided, the order cannot be held to have been passed under O. 17, R. 3. The order of the 30th May was obviously one by which the adjournment of the case at the request of the defendant was refused. The matter of adjournment is dealt with in Rule 1 of Order XVII, C. P. C. , and in asking the plaintiff to produce his evidence, the court purported to act under O. 18, R. 2 (2) of the Code. If the court had decided the case forthwith on the ground of non-production of evidence by the defendant, the defendant would have had to file an appeal against the decree, but as it happened, the court gave an adjournment at the request of the plaintiff and when the defendant had moved the Court a few days before the date of hearing that he may be allowed to produce his evidence, the matter was within the discretion of the court. That discretion had no doubt to be exercised after taking into consideration the entire circumstances of the case. If a court came to the conclusion that the application was made in order to delay the proceedings in the suit or that there were circumstances which would not justify any interference in the earlier order, the court may not allow any indulgence; but if the court considers that the non-production of the evidence on the earlier date was due to certain circumstances not amounting to any negligence on the part of the defendant, the court had a discretion to allow an opportunity to the defendant to lead his evidence. In view of the fact, that the Civil Judge was of opinion that he was not in a position to pass any order on the petition he does not seem to have considered the application on merits. The revision is, therefore, accepted, the order of the 10th July 1950 passed by the learned Civil Judge, Sirohi, is set aside, and the case is sent back to that court which will now proceed to decide the application dated 5th July 1950 on merits. .;