JUDGMENT D.N. Roy, J. - This is an application u/s 115 of the CPC against an order of the court below restoring a suit. The facts are these. On 17-1-1950, the case was adjourned at the instance of the Plaintiff on the ground that his evidence was not in attendance. On the adjourned date, namely, 21-2-1950, the Plaintiff was found absent and his counsel stated that he had no instructions. The Defendants and their counsel were present. The court, therefore, "dismissed the suit for default of the Plaintiff" with costs to the Defendants. The Plaintiff applied for restoration of the suit under the provisions of Order 9, Rule 9 of the Code. The plea taken by the other side was to the effect that the judgment of 21-2-1950 was a decision on merits and that no application for restoration lay. The court below observed that the order dated 17-1-1950 was passed in the presence of the parties and their counsel and a note of that order must be imputed to the Plaintiff, but the Plaintiff could possibly have been misled by a wrong entry in the Suits Clerk's register which indicated that the suit was listed for final hearing of 21-1-1950, information of which was given to him by his counsel, and that although the Plaintiff may be said to have been negligent in not having presented himself on 21-2-1950 and in not noting the date fixed in the case, the principles of justice and equity required; that the suit ought to be restored and heard. 2. The only point which has been urged before me in revision is that the case fell under Order 17 Rule 3 of the Code and not under Order 17, Rule 2 and consequently Order 9 Rule 9 did not apply. Order 17 Rule 2 as amended by this Court stands as follows: 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. Where the evidence of a substantial portion of the evidence or any party has already been recorded, and such party faith to appear on such day, the court may in its discretion proceed with the case as if such party were present and may dispose of it on merits. Explanation: No party shall be deemed to have failed to appear if he is either present or is represented in court by an agent or pleader, though engaged only for the purpose of making an application. 3. Order 17, Rule 3 of the Code as amended by this Court reads as follows: Where, in a case to which Rule 2 does not apply, 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. 4. Relying upon these provisions, and also relying upon the decisions in Narain Das v. Madan Mohan 1939 ALJ 371; Sheo Pujan Kalwar v. Bishnath Kalwar 1939 ALJ 627 and also upon a Full Bench decision in Panna Lal Mandwari Vs. Mt. Bishen Dei, AIR 1946 All 353 , learned Counsel for the applicant has argued that the order in question must be regarded as an order passed under Order 17, Rule 3 and not an order under Order 17, Rule 2. On the other hand reliance has been placed upon three decisions of this Court, the one in Ram Adhin Vs. Ram Bharose and Another , the other in (Firm) Ganeshi Lal Harnarain Vs. Debi Das , and the third in Qudrutullah Vs. Mohammad Kasim Khan and Another, AIR 1952 All 208 where the earlier decision in Ram Adhin Vs. Ram Bharose and Another was relied upon. 5. Cases which have been decided upon these two provisions in the Code have been decided upon their own peculiar facts. Debi Das , and the third in Qudrutullah Vs. Mohammad Kasim Khan and Another, AIR 1952 All 208 where the earlier decision in Ram Adhin Vs. Ram Bharose and Another was relied upon. 5. Cases which have been decided upon these two provisions in the Code have been decided upon their own peculiar facts. In 1925 All 182 it was held that even where a party has taken time to produce evidence and on the date fixed for hearing of that evidence he is absent the proper course to follow is to pass as an ex parte decree and not an order under Rule 3 of Order 17, and that the words "make such other order as it thinks fit" in Rule 2 do not include an order under Rule 3. It was further held that in such a case even if the court purports to deliver judgment on merits, the order is to be treated as an ex parte decree, for the setting aside of which Order 9, Rule 13 is to be followed. This view, as I have said was later on followed in the 1952 case cited above. 6. In (Firm) Ganeshi Lal Harnarain Vs. Debi Das it was held that where a party absents himself whether on the adjourned date or not, and whether he had taken time to produce any particular evidence or not, the provisions of Order 17, Rule 2 become applicable. This decision does not seem to have been dissented from or overruled in any subsequent decision. 7. In Narain Das v. Madan Mohan 1939 ALJ 371 a date was fixed for final hearing of the suit. There-after a joint application was made by the parties praying that a date, other than the date already fixed, be fixed to enable the parties to have sufficient time to summon and produce the witnesses. The court acceding to the request of the parties fixed another date. Four days prior to the date fixed, the Plaintiff filed an application for summoning certain witnesses. On the date of the hearing a telegram was received by the court from the Plaintiff stating his inability to attend the court and his counsel stated that he had no instructions to proceed with the case. Four days prior to the date fixed, the Plaintiff filed an application for summoning certain witnesses. On the date of the hearing a telegram was received by the court from the Plaintiff stating his inability to attend the court and his counsel stated that he had no instructions to proceed with the case. Thereupon the court recorded such evidence as was produced by the Defendant and having considered the case on merits dismissed the suit under Order 17, Rule 3 The Plaintiff contended that the court was wrong in proceeding under Rule 3 and the proceedings should have been held under Rule 2. It was held that Order 17, Rule 3 was clearly applicable. The facts of that case were materially different. Here no evidence on behalf of the Defendant was recorded and the court specifically mentioned that the suit was dismissed for default of the Plaintiff. 8. In Sheo Pujan Kalwar v. Bishnath Kalwar 1939 ALJ 627 the date fixed for final decision was 12-5-1938. On that date the Defendant appeared and applied for an adjournment in order to file a written statement and his application was allowed on condition that he should pay certain sum as costs. The suit was adjourned to 12-7-1938 and when the Defendant did not appear and the costs had not been paid the court thereupon decreed the suit ex parte against the Defendant. The Defendant applied for restoration and ultimately his application was allowed on payment of the original sum of Rs. 2 as damages plus a further sum of Rs. 4. Against that order a revision was filed in this Court u/s 25 of the Provincial Small Cause Court Act and it was held that the application of the Defendant for restoration of his suit was not entertainable having regard to Order 17, Rule 3 of the Code. The facts of that case were also different. There the evidence was recorded in order to sustain the Plaintiffs claim. 9. In the Full Bench case of Panna Lal Mandwari Vs. Mt. Bishen Dei, AIR 1946 All 353 the first hearing of the suit was fixed for 15-11-1941 on which date the Defendant had been directed to appear and to file his written statement in answer to the Plaintiff's claim. The parties did appear on that date and the Defendant filed his written statement. Mt. Bishen Dei, AIR 1946 All 353 the first hearing of the suit was fixed for 15-11-1941 on which date the Defendant had been directed to appear and to file his written statement in answer to the Plaintiff's claim. The parties did appear on that date and the Defendant filed his written statement. On that date the Plaintiff filed an application requesting the court to grant her time for the production of her documentary evidence. That application was taken up on the next date of hearing, namely, 6-12-1941 and was allowed, time having been granted to her for filing her documents by 5-2-1942. On that date the Plaintiff was absent but her counsel filed an application for adjournment. The application having been refused the Plaintiff's counsel stated that he had no further instructions to proceed with the suit and the court thereupon dismissed the suit for default of the Plaintiff. It was held on appeal that in view of the explanation of Order 17, Rule 2, the trial court could not proceed under Order 17, Rule 2, as it originally stood and that the only provision of the Code under which the dismissal of the suit could in the circumstances take place was Order 17, Rule 3. It was also observed that Order 9, Rule 9 did not apply to the case. In the present case the explanation to Order 17, Rule 2 is not to be attracted because here the Plaintiff's counsel made no application on the adjourned date, namely 21-2-1950. On that date the Plaintiff's counsel appeared in court and stated that he had no instructions Consequently the explanation to Order 17 Rule 2 was not attracted and the Plaintiff should not have been deemed to have appeared in court on that date by his counsel who made the only statement that he had no instructions. The Full Bench decision will not, therefore, cover the facts of the present case. On the whole matter I have arrived at the conclusion that the order dated 21-2-1950 was not one under Order 17 Rule 3 of this Code but it was an order under Order 17 Rule 2 to which the provisions Order 9. Rule 9 would apply. The Full Bench decision will not, therefore, cover the facts of the present case. On the whole matter I have arrived at the conclusion that the order dated 21-2-1950 was not one under Order 17 Rule 3 of this Code but it was an order under Order 17 Rule 2 to which the provisions Order 9. Rule 9 would apply. If the Plaintiff applicant was misled by a wrong entry in the register of the Suits Clerk to the effect that the case was fixed for the final hearing on 21-4-1950 inspite of the fact that on 17-1-1950 the adjourned date was fixed in his presence or in the presence of his counsel, the explanation offered by him for the restoration of the suit, which has been accepted by the court below, was a reasonable explanation and in revision I am not prepared to interfere with the discretion exercised by that court. 10. Consequently the revision is dismissed with costs. The stay order is discharged.