JUDGMENT
G.B. Pattnaik, J.
1. The short question, that appeal for consideration in this appeal is whether disposal of the suit in the present case in the absence of the defendant is one under Rule 2 of Order 17 of the Code of Civil Procedure so that the provisions of Order 9 of the Code will be attracted, or is one under Rule 3 of Order 17, so that Order 9 will have no application at all.
2. Defendant in Money Suit No. 7 of 1983 is the appellant. The plaintiff filed the suit for realisation of Rs. 86, 911. 14 alleging that though the defendant’s tender was accepted and the defendant was required to supply the items of goods between 7-11-1978 and 1-5-1979, but it failed to supply the , goods as a result of which the plaintiff sustained the loss. The defendant in its written statement took the stand that time was not of the essence of the contract and, therefore, there has been no breach of contract by it. It was further averred that in August, 1979, the officers of the plaintiff received most of the items and the cancellatioh of the contract by the plaintiff unilaterally is illegal and invalid.
The suit was adjourned to 10-10-1985 for hearing. On 10-10-1985 the plaintiff filed some documents along with a memo as per the list and those documents were admitted into evidence on admission and hearing was adjourned to 11-10-19&5, On 11-10-1935, the defendant filed an application for amendment-. The said prayer for amendment was allowed by order dated 20-11-1985 and the suit was directed to be called on 19-12-1985 for framing of additional issues. Fresh issues were settled on 6-1-1986 and the hearing of the suit was adjourned to 31-1-1986, The suit was there- after adjourned on several occasions either on the application of the defendant or on the application of both and finally the suit was posted to 19-11-1986 for peremptory hearing. On 19-11-1986, the Advocate for the plaintiff filed hazira, but the advocate for the defendant filed a petition for adjournment of the hearing on the ground that the defendant is absent. The Subordinate Judge rejected the prayer for adjournment and directed the parties to get ready at once. Thereafter PW 1 was examined and his cross-examination was declined and large number of documents were exhibited and the plaintiff closed its case. The defendant’s advocate did not proceed with the suit and did not adduce any evidence and, therefore, the hearing of the suit was closed and the suit was called for argument on 28-11-1986. On that date plaintiff’s advocate had filed hazira and the Subordinate Judge heard the arguments and called the matter to 10-12-1986 for judgment. But as the judgment was not ready on 10-12-1986, the matter was called on 18-12-1986 and judgment was delivered on 18-12-1986.
On 19-12-1986, the defendant filed an application under Order 9, Rule 13, Code of Civil Procedure, which was registered as M.J.C. No. 117 of 1986 stating therein that the proprietor of the firm was suffering with enteric fever and was bed-ridden and was undergoing treatment in a Nursing Home at Hyderabad from 13-11-1986 on Account of which he could not be present on 19-11-1986 and thus he was prevented by sufficient cause from appearing wheri the suit was called on for hearing. The plaintiff filed an objection taking the stand that the application under Order 9, Rule 13, Code of Civil Procedure, is not maintainable. The learned Subordinate Judge came to hold that the suit having been posted for peremptory hearing to 19-11-1986 and the defendant though absent, its lawyer being present, he could have cross-examined PW 1, but he failed to do so and thereafter the Court proceeded to dispose of the suit under Order 17, Rule 3 of the Code of Civil Procedure and consequently, the remedy of the aggrieved party is to file an appeal and an application under Order 9, Rule 13 of the Code is not maintainable. Being aggrieved by the aforesaid order of the Subordinate Judge dated 27-9-1988, the defendant has filed the present appeal.
3. Mr. Ramdas, the learned counsel for the appellant, contends that the suit having been disposed of on merits in the absence of the defendant, the disposal is one under Order 17, Rule 2 and not under Order 17, Rule 3 and, therefore, the said order is subject to the provisions contained in Order 9 and consequently, the Subordinate Judge committed error in holding that Order 9, Rule 13 has no application. He further contends that no evidence having been let in by the defendant, its absence at the adjourned hearing on 19-11-1986 will be “a failure to appear” and the decision in absence of the defendant even on merits will be under Rule 2 even though it purports to be made under Rule 3 and, therefore. Order 9 of the Code of Civil Procedure must apply.
Mr. Murty appearing for the respondent, on the other hand, contends that in the facts and circumstances of the present case, the ingredients of Rule 3 of Order 17 having been fully satisfied and the defendant’s advocate being present and his declining to cross-examine the witness and declining to adduce any evidence on behalf of the defe ndant, the disposal of the suit on merits is under Rule 3 of Order 17 and, therefore Order 9, Rule 13 cannot have any application. In view of the rival stand of the parties, the short question that arises for consideration is whether the disposal of the suit in the present case is under Rule 3 or Rule 2 of Order 17 of the Code of Civil Procedure.
4. Rules 2 and 3 of Order 17 provide for distinct and different sets of circumstances. Rule 2 applies where an adjournment has been generally granted and not for any special purpose, whereas Rule 3 applies where the adjournment has been given for one of the purposes mentioned in said Rule 3~. Whereas Rule 3 empowers the Court to decide the suit forthwith. Rule 2 speaks disposal of the suit in one of the modes specified. Rule 2 does not apply unless the party has failed to appear at the hearing, whereas Rule 3 will apply where the party appears, but has committed default referred to in Rule 3. But it has been held in several cases that even where a party is physically present in Court but refuses to take part in the proceedings after his application for adjournment is rejected, he cannot be said to have appeared at the hearing so as to bring the matter within Rule 3 of Order 17, Code of Civil Procedure. Even where a party to whom time’ had been granted at his instance for doing one of the acts mentioned in Rule 3 of Order 17, but he fails to do the same, and also does not appear at the hearing of the suit,. then the Court should proceed only under Rule 2. This is the view expressed by this Court as well as several others High Courts in several cases. (See AIR 1967 Orissa, 14 (Parikshit Sai and Anr. v. Indra Bhoi and Ors.) : 41 (1975) CLT 1117, (Adhikari Devanidhi Das v. Krupanidhi Nanda) : 43 (1977) CLT. 63 (Dr. Lakhiram Gupta v. S. Paikrai); AIR 1977 Madhya Pradesh, 282 (FB) (Rama Rao and Ors. v. Shantibai and Ors.); AIR 1964 Kerala, 99 (P. Govinda Menon, son of Lakshmi Amma and Anr. v. Visalakshi Amma and Ors.) : AIR 1961 Andhra Pradesh, 201 (FB) (W. Agaish v. Mohd. Abdul Koreem) and AIR 1977 Madras, 108 (Chidambaram v. Kalidas and Ors.). Admittedly when the suit was adjourned on 10-10-1986, it was an adjournment generally and not for any special purpose or for any of the purposes mentioned in Rule 3 of Order 17. On 19-11*1986, no evidence had been led by either party and the defendant’s application for adjournment having been rejected, the lawyer appearing for the defendant also did not further participate in the proceeding and finally the Court on the evidence of the plaintiff concluded the matter. Though the Court has disposed of the matter on merits purporting to be one under Rule 3, but it must be held to be one under Rule 2 of Order 17, since the defendant had failed to appear at the hearing on 19-11-1986. This conclusion of mine is supported by the Full Bench decision of the Allahabad High Court reported in AIR 1976 Allahabad, 290 (FB) (M. S. Khalsa v. Chiranji Lal and Ors.) as well as the decision of this Court reported in 1935 (I) OLR 81 (Orissa State Financial Corporation v. Gopal Chandra Ghosh). The decision of the Andhra Pradesh High Court reported in AIR 1975 Andhra Pradesh, 90 (Thummala Suryamma v. The Andhra Pradesh State Electricity Board and Ors.) also supports the aforesaid conclusion and such a decision, therefore, can be set aside under the provisions of Order 9, Code of Civil Procedure. I am, therefore of the considered opinion that the Subordinate Judge committed gross error of law in holding that Order 9, Code of Civil Procedure, has no application.
5. Normally I would have remitted the matter back to the Subordinate Judge for re-consideration of the Miscellaneous Judicial Case on merits. But as sufficient time has elapsed and the plaintiff though has filed an objection but never denied the allegation of illness of the defendant on account of which it is stated that the defendant could not be present on the date of hearing, I am inclined to accept the reasonings indicated in the application filed under Order 9, Rule 13, Code of Civil Procedure, for the non-appearance of the defendant, llmess of the defendant must be held to be a sufiicient ground for non- appearance. In the circumstances, 1 hold that there was sufficient cause on the part of the defendant for its non-appearance on the date of hearing on 19-11-1986 as the defendant’s proprietor had been bed-ridden with enterie fever and had been hospitalised in a private Nursing Home at Hyderabad. In the promises, as aforesaid, the order of the Subordinate Judge dated 27-9-1988 passed in M. J. C. No. 117 of 1986 is sat aside and the ex parte decree dated 18-12-1986 passed in Money Suit No. 7 of 1983 is set aside, subject to the condition that the defendant pays a cost of Rs. 2,000/- (two thousand) to Mr. Murty appearing for the respondent within a period of four weeks from today. If the cost is paid within the stipulated period, then Money Suit No. 7 of 1983 would be relegated to the stage as it was on 19-11-1986 and the matter would proceed from that stage. If the cost is not paid within the stipulated period, the decree already passed will remain operative.
This Miscellaneous Appeal is disposed of accordingly. There will be no further order as to costs.