ORDER
Kamla Sahai, J.
1. The facts which have given rise to tins application by the plaintiff are as follows: The plaintiff was examined on commission, and the pleader commissioner submitted his report along with the deposition on the 21st December, 1959. The suit went on being adjourned from date to date, and no evidence was adduced by the parties. From the 21st March, 1961, the plaintiff took six adjournments for producing evidence. On the 24th July, 1961, again, he filed a petition for time. The (application was opposed by the defendants. The Court rejected the petition and ordered the plaintiff to produce his evidence on the same date. He further directed that the case be put up for hearing at 12.45 P. M. Neither the plaintiff nor his lawyer appeared, when the case was called out at 12.45 P. M. and then the learned Munsif dismissed the suit for default.
The plaintiff filed an application under Order IX Rule 9 as well as Section 151 of the Code of Civil Procedure for setting aside the order of dismissal for default and for restoration of the suit. This was numbered as Miscellaneous Case No. 94 of 1961. This miscellaneous case was also dismissed for default on 28th August, 1961. The plaintiff then filed Miscellaneous Case No. 112 of 1961 for setting aside the order of dismissal of Miscellaneous Case No. 94 and for restoration of that case. The Munsif, 1st Court, of Patna has dismissed this ap-
plication. Hence, the plaintiff has come up to this. Court.
2. Mr. Jagdish Chandra Sinha, who has appeared on behalf of the petitioner, has argued that the order dated the 24th July, 1961, whereby the suit was dismissed under the provisions of Rule 8 of Order 9 of the Code of Civil Procedure, is erroneous because, material in the shape of the deposition. of the plaintiff on commission being alrealy on the; record, the Court should have proceeded under Rule 3 of Order 17. In support of this contention, he has relied upon a Full Bench decision in Basalin-gappa v. Shidramappa, AIR 1943 Bom 321. The facts of that case were different. In any case, what has been held in that case is that, where there is material on the record on which a decision can bo arrived at, the Court ought to proceed under Rule 3 of Order 17. It has not been held that the Court has no jurisdiction at all to proceed under Rule 2 of Order 17, if there is material on the record on which decision can be arrived at. Rules 2 and 3 ot that Order read:
“2. 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.
3. 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.”
It is manifest that, where the parties fail to appear on an adjourned date, the Court may, under Rule 2, dispose of the suit in accordance with the provisions of Order 9 of the Code. In a case where time is granted for production of evidence, or production of witnesses or to perform any other act necessary to the further progress of the suit, and the party concerned fails, the Court may decide the suit at once, i.e. may dispose of the suit on merits. The substance, therefore, is that, where there is no material on the record, on the basis of which a decision can be arrived at, the Court has no alternative but to proceed under Rule 2 of Order 17; but. in a case where there is material on the record of the suit on which a decision can be arrived at the Court may proceed either under Rule 2 or under Rule 3. According to the decision of the Full Bench, which I have just cited, the proper procedure to follow in the latter kind of cases is to proceed under Rule 3. Their Lordships have, however, not laid down that the Court would act illegally in proceeding under Rule 2 even when there is material on the record.
3. The Full Bench decision has no application jn this case for the reason that there was no evidence or material at all before the Court on which it could arrive at a decision. Deposition which is taken on commission ought to be tendered in evidence under Order 26 Rule 8. It is only when the Court has permitted the deposition to be read in evidence that it is evidence in the case. There was, therefore, no material on the basis of which the learned Munsif could decide the suit on merits in this case. There is thus no question of his having applied Rule 3 of Order 17, in the facts of this case.
4. Even if it is assumed for the sake of argument that the proper procedure for the Munsif to adopt was to proceed to decide the suit forthwith under Rule 3 of Order 17, the utmost that can
be said is that he acted improperly in dismissing the suit tor default under Order 9 Rule 8 on ,the 24th July. The order even if it was improper, could only be rectified if the aggrieved party followed the proper remedy. The remedy which was available to him was the one provided for under Rule 9 of Order 9. He, therefore, rightly filed Miscellaneous Case No. 94 under that provision. Section 151, which he mentioned, was redundant. That miscellaneous case must, therefore, be treated ;as a case under Order 9 Rule 9. When that case was dismissed for default on the 28th August, 1961, the order of dismissal for default became appealable, under Order XLIII Rule 1(c). The plaintiff did not file an appeal. He filed an application under Section 151 of the Code instead. It has been held by a Full Bench of this Court in Doma Choudhary v. Ram Naresh Lal, AIR 1959 Pat 121 that, in the absence of special circumstances which amount to abuse of the process of the Court, an application under Section 151 of the Code is not cntertainable against an order of dismissal for default of an application under Order 9 Rule 9. No special circumstance of the kind con- templated in that decision has been brought to my notice by learned counsel.
5. In the circumstances mentioned above, it is clear that the learned Munsif rightly dismissed Miscellaneous Case No. 112 of 1961 which was filed under Section 151 of the Code. This application, therefore, fails, and it is dismissed with costs; hearing fee Rs. 32/-.
