JUDGMENT
V.M. Jain, J.
1. This appeal has been filed by the plaintiff – appellant against the order dated 2.7.2005 passed by the learned District Judge, Shimla, dismissing the application of the plaintiff-appellant under Order 9 Rule 9 C.P.C., seeking restoration of the suit, which was dismissed in default on 11.7.2003.
2. The facts which are relevant for the decision of the present appeal are that the plaintiff had filed a suit against the defendants, which was pending in the Court of District Judge, Shimla. On various dates, the plaintiff failed to produce evidence in support of its case. The next date fixed in the case was 11.7.2003 for the plaintiff’s evidence being the last opportunity subject to payment of Rs. 1,000/- as costs. On 11.7.2003, no one came present on behalf of the plaintiff. Even though the counsel for the defendants were present. After noticing that no evidence of the plaintiff was present inspite of the fact that it was the last opportunity subject to payment of costs and even the cost had not been paid and the plaintiff was also not present and after noticing that the case had been called twice since morning, but none had appeared on behalf of the plaintiff, the learned District Judge vide order dated 11.7.2003 dismissed the suit of the plaintiff “for want of prosecution”. Thereafter, on the same day i.e. on 11.7.2003, the plaintiff filed application under Order 9 Rule 9 read with Section 151 C.P.C. for setting aside the order dated 11.7.2003 vide which the suit was dismissed, alleging therein that the plaintiff was very much in the Court complex and had gone in search of the counsel in the forenoon and in the absence of the plaintiff and his counsel, the case was dismissed. It was alleged that infact the counsel for the plaintiff could not attend the Court due to his illness and when the plaintiff came after searching for his counsel, he came to know that the suit had already been dismissed. It was alleged that the absence of the counsel was neither intentional nor willful, but was beyond his control. It was further alleged that the application for restoration was moved immediately and that there was sufficient cause for setting aside the dismissal of the suit and for its restoration in the interest of justice. The said application of the plaintiff was accompanied by the affidavit of the Director of the plaintiff on the same day i.e. 11.7.2003. The said application was contested by defendant/respondent No. 1 by filing a reply controverting the allegations contained in the application.
3. After hearing both sides and perusing the record, the learned District Judge dismissed the aforesaid application of the plaintiff holding that the suit had been dismissed under Order 17 Rule 3 C.P.C. and as such, no application for the restoration of the suit dismissed under Order 17 Rule 3 C.P.C. was maintainable. Resultantly, the restoration application was dismissed vide order dated 2.7.2005. Aggrieved against the same, the plaintiff filed the present appeal in this Court.
4. Notice was ordered to be issued in this case. The lower Court record was also requisitioned.
5. I have heard the learned Counsel for the parties and have gone through the record carefully.
6. The learned Counsel appearing for the plaintiff – appellant submitted before me that since no one had put in appearance on behalf of the plaintiff on 11.7.2003 when the case was called for hearing, the suit shall be deemed to have been dismissed under Order 17 Rule 2 C.P.C. and not under Order 17 Rule 3 C.P.C., as held by the learned District Judge.
7. There is great force in this submission of the learned Counsel for the plaintiff-appellant. Under Order 17 Rule 3 C.P.C., it has been provided that where any party to a suit, to whom time has been granted fails to produce his evidence etc., the Court may notwithstanding such default proceed to decide the suit forthwith, if the parties are present and if the parties or any of them is absent, then the Court is required to proceed under Rule 2 of Order 17 C.P.C. Admittedly, in the present case, no one had put in appearance on behalf of the plaintiff on 11.7.2003 when the case was called for hearing. Thus, the Court was not competent to proceed under Order 17 Rule 3 C.P.C., but was required to proceed under Order 17 Rule 2 C.P.C. As per Order 17 Rule 2 C.P.C., 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 C.P.C. or to make such other order as it thinks fit. So far as the explanation to Rule 2 of Order 17 C.P.C. is concerned, the same would have no application to the present case, since admittedly substantial portion of the evidence of neither party had been recorded by the date, the order dated 11.7.2003 was passed by the learned District Judge. On the other hand, since no one had appeared on behalf of the plaintiff before the trial Court on 11.7.2003, the Court was bound to dispose of the suit as provided under Order 9 C.P.C. i.e. to dismiss the suit in default. That being so, in my opinion, the dismissal of the suit on 11.7.2003 shall be deemed to be the dismissal of the suit in default under Order 17 Rule 2 C.P.C. and shall not be treated as the dismissal of the under Order 17 Rule 3 C.P.C. as held by the learned District Judge. Merely because the learned District Judge while dismissing the suit on 11.7.2003 had dismissed the suit for want of prosecution, in my opinion, it could not be said that the dismissal of the suit was under Order 17 Rule 3 C.P.C. On the other hand, the dismissal of the suit shall still remain a dismissal in default as provided under Order 17 Rule 2 read with Order 9 Rule 8 C.P.C. and mentioning in the order that the suit is being dismissed for non-prosecution, in my opinion, would be of no consequence.
8. In Amar Chand v. Firm Dasondhi Mal Kuljas Rai and Ors. AIR 1977 Himachal Pradesh 58, it was held by this Court that it is not the firm but the substance of the order and the intention with which the Court proceeded, that would be relevant factors to hold whether the decision was on merits under Rule 3 and/or otherwise in default under Rule 2 of Order 17 C.P.C. In Rameshwar Nath v. Ranjit Singh and Ors. 1988 PLJ 329, it was held by the Punjab & Haryana High Court that where one of the parties to the suit remain absent and no evidence has been examined, the Court has no option but to proceed to dispose of the matter in accordance with Order 17 Rule 2 C.P.C., whereas provisions of Order 17 Rule 3 C.P.C. would apply where both the parties are present and the Court is required to proceed to decide the suit forthwith and in case one of the parties is not present, the Court is required to proceed under Order 17 Rule 2 C.P.C. Similar views was taken by a Full Bench of five Hon’ble Judges of Madhya Pradesh High Court in case Rama Rao and Ors. v. Shantibai and Ors. .
9. In view of the law laid down in the aforesaid authorities and from a reading of the provisions of Order 17 Rules 2 and 3 C.P.C., in my opinion, it would be clear that the order dated 11.7.2003 passed by the learned District Judge dismissing the suit shall be deemed to be an order under Order 17 Rule 2 read with Order 9 Rule 8 C.P.C., even if the learned District Judge had said in his order that the suit was being dismissed for want of prosecution.
10. Once it is found that the suit of the plaintiff was dismissed under Order 17 Rule 2 read with Order 9 Rule 8 C.P.C., in my opinion, the application filed by the plaintiff – appellant under Order 9 Rule 9 C.P.C. for restoration of the suit was certainly maintainable before the learned District Judge, being the trial Court. I am further of the opinion that the learned District Judge had erred in law in dismissing the said application of the plaintiff on the ground that the same was not maintainable, by observing that the suit was dismissed under Order 17 Rule 3 C.P.C. and not under Order 17 Rule 2 C.P.C. In my opinion, the view taken by the learned District Judge is not in accordance with law.
11. In view of the detailed discussion above, the present appeal is allowed, the order dated 2.7.2005 passed by the learned District Judge dismissing the application under Order 9 Rule 9 C.P.C. is hereby set aside and the case is remanded to the learned District Judge for deciding the said application afresh in accordance with law.
12. Parties through their counsel are directed to appear before the learned District Judge on 12th December, 2005, for further proceedings in accordance with law.