JUDGMENT
S. Padmanabhan, J.
1. Second appeal is by the plaintiff. Suit is for recovery of property on title. The Commissioner deputed to ascertain the properties could not do so with the help of the surveyor for want of necessary survey records. Appellant failed to supply the records as ordered. Commission was recalled and the case posted in the special list for trial to 1-10-1980. Appellant did not appear, but his Advocate moved an application to remove the case from the list. When it was rejected, he withdrew and said that the appellant is not prepared to proceed further. Suit was dismissed for default and not on merits. Appeal by the plaintiff was also dismissed as not maintainable.
2. The crucial question is whether the decision is for default of non-appearance under Rule 2 or on the merits under Rule 3 of Order XVII. Disposal under Rule 2 could only be on any one of the methods under Order IX. If that is an ex parte decree against the defendant, it is appealable and a petition under Order IX, Rule 13 also will lie. But, if it is a dismissal of the suit for non-appearance of the plaintiff alone, the decision is only under Order IX, Rule 8. It is not an appealable decree or order. The only remedy is a petition under Order IX, Rule 9. Even the provision under Order XLIII, Rule (1)(h) for appeal against an order when the decision is under Order XVI, Rule 20 has been deleted by the amendment of 1976. But if the decision is under Order XVIII, Rule 3, it is an appealable decree.
3. Order IX is concerned with appearance of parties and consequences of non-appearance, while Order 17 deals with the next stage of adjournments. Appearance could be in person or by pleader. If the parties or any of them do not appear on the adjourned date, the Court can decide the suit on any of the available methods provided in Order IX, It will only be a decision for default. The only exception provided by the amendment of 1976 is the one under the new explanation to Rule 2, which enables the Court to render a decision on the merits also in such cases under Rule 3, provided the evidence or a substantial portion of the evidence of the non-appearing party has already been recorded. Under the old Code, a decision on the merits under Rule 3 was possible irrespective of the presence or absence of the parties, according to the discretion of Court, provided the adjournment was at the instance of the defaulting party, who failed to produce his evidence, or cause attendance of his witnesses, or perform any other act necessary to the further progress of the case, for which time was granted. Now, under the newly added Clause (a), over and above the said conditions, presence of parties is also necessary. So also, under the new Clause (b), if the parties are, or any of them is, absent, the decision could be only under Rule 2. Of course, these two clauses are subject to the explanation to Rule 2. In order to attract Rule 3, a general adjournment or posting of the case is not sufficient. A specific posting by an adjournment at the instance of the defaulting party for any one of the purposes mentioned in the first part of Rule 3 and failure are necessary. A direction to comply with any such condition and its failure at some earlier point of time will not be sufficient. The posting on the particular day must be for that purpose.
4. In this case, the posting to 1-10-1980 was a general posting for trial in the special list. It was not at the instance of the appellant for any of the purposes in Rule 3. The posting for production of survey records was at an earlier date. Default met with the penalty of recalling the commission order. Posting to 1-10-1980 was not for that purpose and it was not at the instance of the appellant. Therefore, Rule 3 is excluded. So also, this is not a case in which explanation to Rule 2 is attracted. Evidence or substantial portion of the evidence of the appellant was not recorded before 1-10-1980. Appellant was not present on that day also. Dismissal was for default and not on the merits. In any view, Rule 3 cannot be attracted. Now, the discretion to decide the case on the merits in the absence of a party even when other conditions are satisfied is only in cases covered by the explanation to Rule 2 (Prakash Chander Manchanda v. Janki Manchanda, AIR 1987 SC 42). A dismissal in the absence of a party and not covered by the explanation to Rule 2 cannot come under Rule 3 simply because it was written on the merits by discussing the issues and evidence, if any (M. V. George v. S. M. R. Traders, 1980 Ker LT307 : (AIR 1980 Kerala 100)). Likewise, a decision falling under Rule 3 will not become one under Rule 2 simply because the Court has not written a detailed judgment considering the issues and evidence.
5. It is not possible to accept the argument that the appellant must be deemed to have been present on 1-10-1980. Even conceding that he was present, Rule 3 cannot apply. When the application for removal of the case from the list was rejected, the Advocate retired with the statement that his client is not prepared to go ahead with the case. Presence of the Advocate who thus retired cannot be presence of the party. Presence of the party himself, if it is in a mood of non-co-operation without the preparedness to do anything for the progress of the case to enable the Court to decide the suit on the merits cannot be accpeted as presence at all. ‘Appearance’ in Order IX and Order XVII, Rule 2 could be through pleader also. But presence of a party for the progress of the case is his physical presence except when such physical presence is not necessary for anything connected with the progress and decision of the suit on the merits. In such a situation, when the presence of the Advocate is sufficient and he is prepared to proceed with the case, the case could be decided in the regular way and there will be no question of deciding the suit under Rule 2 or 3. But in such cases if the party, whose presence is not necessary, is absent but the counsel who appears is there only for seeking an adjournment and he retires representing no instruttions when the adjournment is refused, that also cannot be treated as presence for the purpose of the case. In such cases also, unless explanation to Rule 2 is attracted, a decision under Rule 3 is not possible.
6. The two decisions, which held that presence of the party, even if he is not prepared to participate in the trial is presence attracting Rule 3, are Rama Rao v. Shantibai, AIR 1977 Madh Pra 222 (FB) and C. Chennaiya-Naidu v. Panchayat Board, AIR 1979 Madras 135. The first one, which is a Full Bench decision, held that when the Advocate alone appears to seek an adjournment and he retires when adjournment is refused, it will not be appearance at all. The second decision took the extreme view. That is a single Bench decision, which disagreed with two earlier decisions of the same Court which took a contrary view. But the trend of authorities supplied by decisions of various High Courts is unanimous on the point that the presence or appearance of a party or counsel without preparedness to co-operate for the progress of the case cannot be treated as presence attracting Rule 3(a), which is a condition precedent to the decision on the merits except in cases covered by explanation to Rule 2. We can have those decisions in Kunjannam v. A. Issac, 1961 Ker LT 653, Abdulla Haji v. Mammunhi Barikat, 1969 Ker LT 433, Natesa Thevar v. Vairavan Servai, AIR 1955 Madras 258, Gulvir Singh v. Tara Chand, AIR 1982 Allahabad 250, Thummala Suryarama v. Andhra Pradesh State Electricity Board, AIR 1975 Andh Pra 90, Marothu Suryarao v. Paluri Peddiyya, AIR 1967 Andh Pra 152, Muzammai Hussain v. Chaganlal Jain, AIR 1967 Assam 14, Hindustan Steel Ltd. v. Prakash Chand Agarwal, AIR 1970 Orissa 149, Sohanlal Ruia v. Kedarnath Purushot-tamdas and Co., AIR 1969 Cal 516, Gopi Kisan v. Ramu, AIR 1964 Rajasthan 147 (FB), M. Agaiah v. Mohammed Abdul Kareem, AIR 1961 Andh Pra 201 (FB) and Sankara Pillai v. Balakrishnan Nair, (1988) I Ker LT 339.
7. The power conferred on Courts under Rule 3 of Order XVII to decide the suit on the merits for the default of a party is a drastic power which seriously restricts the remedy of the unsuccessful party for redress. It has to be used only sparingly in exceptional cases. Physical presence without preparedness to co-operate for anything connected with the progress of the case serves no useful purpose in deciding the suit on the merits and it is worse than absence. In any contingency, the discretion is always with the Court to resort to Rule 2 or 3 or to grant an adjournment for deciding the suit in a regular way in spite of default. Rules 2 and 3 are only enabling provisions. In order to decide the suit on the merits, the mere existence of the conditions enumerated in Rule 3 alone will not be sufficient. There must be some materials for a decision on the merits, even though the materials may not be technically interpreted as evidence. Sometimes the decision in such cases could be on the basis of pleadings, documents and burden of proof. Anyhow, it is appreciable for the Court to indicate by the judgment that the decision is for default or on the merits. The only alternative of the Court in cases covered by Rule 3 or the explanation to Rule 2 is not to decide on the merits alone. If such an interpretation is given, it will amount to an unjustified preference to one who purposely absents than to one who presents but unable to proceed with the case.
8. ‘Appearance’ and ‘presence’ have well recognised meanings. They imply presence in person or through pleader properly authorised for the purpose of conducting the case. Rule 3 comes into play only when presence is to proceed with the case, but default is committed in any one of the three ways mentioned in Rule 2 or explanation to Rule 2 is extracted. Those are cases in which some materials are there for the Court to decide the case on the merits and not cases where decision could only be for default. That is clear from a combined reading of Rules 2 and 3 and the explanation. In this case, none of these conditions are present and the decision is evidently for default. Rule 2 alone is attracted. Appeal will not lie.
9. If the grounds pleaded by the appellant are correct, he can move an application before the trial Court under Order IX, Rule 9 along with an application under Section 14 of the Limitation Act. In that case, the trial Court will consider these applications on the merits.
Second appeal is dismissed. No costs.