K.R. Gopivallabha Iyengar, J.
1. The respondent in these two appeals filed O. S. No. 78/70 and O. S. No. 88/70 on the file of the Civil Judge. Civil Station. Bangalore, The earlier suit is one for the recovery of Rs. 21.065/- said to be due on a promissory note executed by the defendant. The second is a suit for the recovery of Rs. 7,563/- partly towards arrears of rent and partly towards mesne profits and for the recovery of possession of the property. These two cases were being posted together as the parties in both the cases are the same. The cases came up for hearing after series of adjournments on 2-4-1970. On 2-4-1970, the order sheet In O. S. No. 78/70 reads as follows :–
"Defendant's counsel prays for adjournment. Plaintiff's counsel opposes. Defendant's counsel says, he has to obtain certain copies and is not ready to get on with evidence. Adjourned as a final chance on 14-4-1970 on costs of Rupees15.00". In O. S. No. 88/70, the order sheet reads as follows:-- "P. W. 1 examined Exhibits P-l. P. 2 marked. Cross-examination to begin on 14-4-1970, Counsel for the defendant save that he has to obtain some certified copies Defendant's counsel informed that on no account further adjournment will be granted in this case and both sides should close on next date." 2. On 14-4-1970, the order sheet In O. S. 78 of 1970 reads:--
“Cost not paid. Defendant in person says that his advocate is not in station and prays for adjournment. Plaintiff’s counsel seriously opposed adjournment as the case was adjourned as a final change and even costs are not paid. The adjournment is refused. The defendant is not willing to Hive evidence in the absence of his counsel. Hence defendant’s side is closed. At this stage, the defendant said that he would fetch another lawyer and promised to return within 15 minutes. Though he went at 11.50 A.M. he has not returned till 12.30 P.M. Thereafter P. W. 1 examined and Exs. P-l and P-2 marked. Plaintiff’s side closed. Heard plaintiff’s counsel.”
The judgment was pronounced on the same day decreeing the plaintiff’s suit as prayed for with costs. In the later suit the order sheet of 14-4-1970 records as follows:–
“Defendant in person. Says he cannot cross-examine the plaintiff as his Advocate is out of station. Plaintiff’s counsel very seriously opposes the adjournment. As the case was adjourned as final chance further adjournment is refused. Plaintiff’s side is closed. Defendant says he cannot lead his evidence as his Advocate is absent. Hence, defend-ant’s side is also closed. Heard plaintiffs counsel. Judgment 18-4-1970.” On 18-4-70 the judgment was pronounced and the suit was decreed as prayed for with costs and other reliefs.
3. The defendant filed two petitions registered as Misc. Nos. 19 and 20 of 1970 praying that the decree pasted on 14-4-1970 and 18-4-1970 be set aside. He made these applications under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure. He pleaded that when he was going to fetch his counsel he met with an accident and therefore he could not attend the Court as he intended to do on 14-4-1970. This application was opposed by the respondent denying the allegations made in the petition relating to facts and also raising an objection regarding the maintainability of the petitions. His contention is that the orders
passed on 144-1970 in O, S. 78/70 and OP 18-4-70 in O. S. No. 88/70 are orders made under the provision of Order 17, Rule 3, Civil P. C. and therefore the applications are not maintainable. The learned Civil Judge has taken the view that the decisions made by the Court on 14-4-1970 and 18-4-1970 are judgments coming within the purview of Order 17. Rule 3, Civil P. C., and therefore holds that the petitions cannot lie and dismissed the petitions.
4. Against these orders of dismissal, the petitioner defendant has filed the above miscellaneous appeals under the provisions of Order 43, Rule 1 of the Civil P. C.
5. Sri Kadidal Manjappa, the learned counsel appearing for the petitioner, urges that in view of the fact that the provisions of Order 17. Rule 3 of the Civil P. C. are almost penal in character, it should be construed strictly. In support of this proposition, he relies upon several decisions, viz., AIR 1953 Nag 222 (Dayalji v. Kedarnath Onkarmal and Co.) and (P. Govinda Menon v. Visalakshi Amma). This proposition is unexceptionable. Wherever it is possible to construe the order in question as coming within the provision of Order 17, Rule 2, it should be so done. Even if there should be a doubt as to whether the order comes under Order 17. Rule 2 or Order 17, Rule 3 of the Civl P. C.. the party must be given the benefit of Order 17. Rule 2, Civil P. C. In this case it is to be seen whether the orders passed by the trial Court in the two cases on 14-4-70 and 18-4-70 came within the purview of Order 17, Rule 3.
The decision in (1963) 1 Mys LJ 544 (Siddappa Shivalingappa Doddamani v. B. B. Shinde) may be referred to in this connection. After extracting the provisions of Order 17, Rules 2 and 3, the learned Judge observes that-
“To decide whether the decision in question falls within Rule 3 of Order 17, the Court has to decide three subsidiary questions. They are: (i) whether the suit was posted to 14-10-1955 for the production of petitioner’s witnesses or to cause the attendance of these witnesses or to perform any other act necessary to further the progress of the suit; (ii) whether the suit was decided on merits; and (iii) whether the second defendant failed to appear on that date. Before a decision can be said to come within Rule 3 of Order XVII. The suit in which the decision was given must have been posted for trial; it should have been decided on merits and the party or parties should not have appeared in Court on the date to which the case was posted.”
I shall advert to this decision after Stating the exact contention of the appel-
lant’s counsel in this appeal. From the order sheet in O. S. 78/70 that is extracted already, it is seen that the appellant was not willing to give evidence in the absence of his counsel. The defendant’s side was closed. At that stage the defendant said that he would fetch another lawyer and promised to return within 15 minutes. Though he went at 11-50 A.M. he did not turn up till 12.30 P.M. when the judgment was passed. Sri Kadidal Manjappa contends that at 11.50 A.M. when the case was called, the Court adjourned the case at the instance of the defendant to enable him to fetch his counsel; when the case was again called, the defendant was absent and the Court proceeded to examine a witness and pass the judgment; in these circumstances, this is a case where the defendant was absent when the evidence was recorded and the judgment was pronounced, and therefore, this comes clearly within the provisions of Order 17, Rule 2, Civil P. C. and therefore the order of the trial Court holding that the applications under Order 9, Rule 13. Civil P. C. would not lie is illegal.
Order 17. Rule 3 does not provide for what is to be done when the case is called for the first tune in Court and it is taken up later. If the party is present when the case is called for the first time goes out and does not turn up, as represented by him and the Court proceeds to decide the suit forthwith after recording the evidence or on the basis of the evidence already recorded, it cannot be said that the party is absent. Nor can it be said that the case was adjourned. The partv has been present when the case was called and what is done later is only the passing of the order after recording what transpired when the partv is present earlier. It appears to me that this principle gathers strength from what happened in (1963) 1 Mys LJ 544. referred to earlier. In that case, the Advocate who was present at the time the case was called moved for an adjournment and retired from the case when the adjournment was not granted. Thereupon the Court proceeded to pass the judgment on merits. Even though the Advocate retired from the case the party must be held to have appeared in Court for the purpose of Rule 3 of Order 17.
Now in this case, the party who appeared earlier did not appear later. It is as good as a counsel appearing in the case and retiring from the case when the adjournment is refused. If in those circumstances the judgment that is passed by the Court is considered as a decision given under the provisions of Order 17, Rule 3, Civil P. C., no distinction in principle could be made in such a case and the cases now before me because in one case the counsel is absent and inthe other the party is absent. Therefore, what is required to be seen is whether the requisites as laid down in (1963) 1 Mys LJ 544, referred to earlier and Order 17, Rule 3 are satisfied or not. It was not contended that the suit was not posted to 14-4-1970 for adducing evidence. It is not disputed that the suit is decided on merits. Further it is clear from the order sheet that the defendant was present when the case was called and failed to adduce evidence and later failed to turn up; therefore, it appears to me that the order passed by the trial Court holding that the applications under Order 8, Rule 13 made by the appellant do not lie is correct. The party cannot be allowed to disable the Court from passing an order under Order 17, Rule 3 by merely absenting himself taking advantage of an indulgence shown by the Court permitting him to fetch his counsel. What is done later is merely a continuation of the step taken earlier.
6. The several decisions which Sri Kadidal Manjappa cited are cases which clearly come within the provision of Order 17, Rule 2. Civil P. C. He also relied upon a decision (Parikshit Sai v. Indra Bhoi). It is held therein that “Rule 3 would apply to a case where the party is present in Court but committed the types of defaults referred to in the Rule.” This decision cannot avail the appellants and besides the present appeals are distinguishable on facts. Further in view of the decision of our High Court reported in (1963) 1 Mys LJ 544, it is unnecessary to place any reliance on this decision. The appellant’s counsel also placed reliance on AIR 1967 Assam 14 (Muzammal Hussain v. Chaganlal Jain). It is a case where the suit was adjourned as there was an alleged compromise between the parties on the date fixed for hearing. The defendant though present did not take part in the suit and a decree was passed. It was held that the decree must be deemed to have been passed under Order 17. Rule 2 and that application under Order 9, Rule 13 was maintainable. The facts in these cases are quite different and they come within the purview of Order 7. Rule 3 as mentioned by me earlier.
7. In the circumstances of this case and the position in law as laid down by this Court in (1863) 1 Mys LJ 544, and Order 17, Rule 3, Civil P. C. the decision of the trial Court cannot be disturbed. In the result, these appeals fail and they are dismissed with costs.