JUDGMENT
Bellie, J.
1. The defendant against whom a decree for recovery of a sum of Rs. 11,083.37 has been passed by the trial court and whose appeal has been dismissed, is the appellant in this second appeal.
2. The plaintiff claimed the said sum of Rs. 11,083.37 from the defendant as due in respect of the carpentry work done by him as regards the tenements the defendant was constructing on a contract with Tamil Nadu Slum Clearance Board. The defendant denied that such amount was due to the plaintiff and on the other hand he contended that it is the plaintiff who is due to him a sum of Rs. 1,000 on account of over-payment by him to the plaintiff.
3. The suit stood posted to 17.9.1985 for trial. On that day the plaintiff was examined as P.W.I and the evidence on his side was closed. The suit was adjourned to 20.9.1985 for the evidence on the side of the defendant. At the request of the defendant’s counsel the suit was adjourned to 25.9.1985. On that date, both defendant and his counsel were absent. The court adjourned the case to 30.9.1985. On that day also, neither the defendant nor his counsel was present. The court heard the arguments of the counsel for the plaintiff and delivered a judgment on merits. As against that judgment the defendant preferred an appeal and the same was dismissed.
4. Now, in the second appeal, the only question argued by the learned Counsel for the appellant-defendant is that the trial court, when the defendant and his counsel were absent, should have set the defendant exparte and then passed an exparte decree but it has erred in passing a decree on merits and therefore the defendant could not file an application to set aside the decree under Order 9, Rule 13 of the Code of Civil Procedure. It may be mentioned here that this question was not raised in the original grounds of appeal and consequently no substantial question of law on this point was formulated by this Court but however during the time of arguments an application was filed by the appellant-defendant for permission to raise such a point, and that application was allowed. Therefore we have to consider whether in the circumstances of the case the trial court was right in passing a decree on merits as it did.
5. To re-collect, after the evidence on the plaintiff’s side was over, the matter was adjourned to another date for evidence on the side of the defendant. On that date, neither the defendant nor his counsel was present. In this circumstance, what would be the proper course the court should follow is the question. In this connection, the learned Counsel for the appellant-defendant reads out Order 17, Rules 2 to 3 of the Code of Civil Procedure which are relevant. Rule 2 provides for the procedure to be followed if parties or any of the parties failed to appear, and Rule 3 deals with the procedure to be followed when time has been given to a party to let in evidence and he fails to do so. This Rule 3 provides that when such a thing happens i.e., when the party to whom time is given for adducing evidence fails to do so, (a) if the parties are present, the Court may proceed to decide the suit forthwith, or (b) if the parties are, or any of them is, absent, the court may proceed under Rule 2. In our case, the defendant and his counsel were not present (and consequently no evidence was let in). Therefore the correct procedure to be followed is to proceed under Rule 2. Now, as per Rule 2 if 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. As per the explanation given under Rule 2, where the evidence or a substantial portion of the evidence of the party who fails to appear has been recorded, the court may, in its discretion proceed with the case as if such party were present. This explanation is not attracted to our case because the defendant has not let in any evidence. Therefore under Rule 2 the court has to dispose of the suit in any one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit. Here itself we may dispose of the expression “such other order as it thinks fit.” This expression does not mean that the court can decide the case on merits. It only means that the court may proceed to adjourn the case to some other date or pass any such order. If the legislature meant that by the said expression the court can decide the suit on merits, it would have said so explicitly as it has stated in Rule 3(a) that if the parties are present the court may proceed to decide the suit. Hence it follows that the only course the court should have followed is to dispose of the suit in any one of the modes directed in that behalf by Order 9.
Now adverting to Order 9, Rule 6 thereof relates to the procedure to be followed when the plaintiff appears and the defendant does not appear. In such a case, the court may make an order that the suit be heard exparte. Therefore in the present case, when neither the defendant nor his counsel was present on the adjourned date, the defendant should have been set exparte and then the suit be proceeded with. But without setting the defendant exparte, the court has straightaway decided the case on merits. Therefore there is merit in the contention of the learned Counsel for the appellant-defendant that the defendant could not file an application for setting aside the decree under Order 9, Rule 13 of the Code of Civil Procedure. 6. The learned Counsel for the appellant-defendant during the course of arguments in support of his contention, relied on a Full Bench decision of this Court in Prativadi Bhayankaram Pichamma alias Mangamma v. Kamisetti Sreeramulu and Ors. 34 M.L.J. 24 wherein Sadasiva Aiyer and Kumaraswami Sastri, JJ. two of the judges constituting the Full Bench along with the then Chief Justice held that,
Rules 2 and 3 of Order 17 of the Civil Procedure Code are independent and where the requisites of Rule 2 are satisfied that rule and not Rule 3 should be applied, although, in addition to the absence of the party circumstances exist which would satisfy the requirements of Rule 3.
Rule 3 applies only to cases where the parties are present and have not satisfied the court as to the existence of any adequate reason for their, not having done what they were directed to do.
The Chief Justice held,
When a case is called and the defendant is absent and the court resolves to proceed against him exparte, there is nothing to prevent the court from applying the provisions of Order 17, Rule 3 and disposing of the suit notwithstanding the defendants’ failure to do what he had been granted time to do, but that disposal will be none the less exparte and the decree will be liable to be set aside under Order 9, Rule 13.
There is no conflict at all between the two rules, Order 17, Rules 2 and 3 and each may be fully applied at the proper stage of the case.
In M.A. Suyambulingam v. V.K. Swaminathan (1988) 1 L.W. 368, a Division Bench of this Court held that the treatment of the defendant as ex parte when he was absent on the adjourned date is correct. As against this the learned Counsel for the respondent-plaintiff relied on Sheo Pujan Kalwar v. Bishnath Kalwar A.I.R. 1939 All. 642. But in that case, the court has dealt with Order 17, Rule 3 as amended by that court which reads substantially different from the original rule. Therefore that judgment is not relevant. It was next relied on for the respondent-plaintiff the decision in Subramania Othuvar v. Munusamiya Pillai A.I.R. 1916 Mad. 897. But that deals with the case of the plaintiff’s absence. Another authority read out for the respondent-plaintiff is Thummala Suryamma v. The Andhra Pradesh Electricity Board . What was discussed therein is the effect of the mere physical presence of the party without participating in the case. That ruling is of no use for the decision of the point at issue in the present case.
7. Thus considering, I am clearly of the view that the trial court ought not to have decided the case on merits without setting the defendant exparte. Hence the decree cannot be held to be correct in law. In the circumstances, the decree has to be set aside and the matter be remanded to the third court for fresh disposal. I order accordingly. The trial court is directed to dispose of the case within three months from the date of receipt of the records from this Court. Accordingly the appeal is allowed. There will be no order as to costs.