BERI, J.—This is a reference by a learned single Judge of this Court to resolve a conflict relating to the interpretation and consequent applicability of rules 2 and 3 of Order XVII of the Code of Civil Procedure which arise for certain decisions of this Court. 2. Before we formulate the question for answer it would be convenient to briefly notice the facts of the case before us. A suit for recovery of money was instituted before the Munsiff, Bikaner by a plaint dated 23rd May, 1955, on the basis of a deed of agreement concerning the sale and delivery of a lorry. The defendants filed a written statement dated 22nd February, 1956, denying the execution of the deed and the liability arising therefrom. The Munsiff Bikaner on 9th August, 1957 framed issues relating to (a) the execution of the deed and want of consideration; (b) the factum of delivery of lorry; (c) the penal character of the rate of interest claimed and (d) the relief. The suit stood fixed for the plaintiffs evidence on 19th September, 1957, on which date the plaintiff obtained an adjournment on payment of costs and the case was fixed for 19th October, 1957, on which date of hearing the counsel for the parties were present but the plaintiff and his witnesses were absent. The plaintiffs pleader reported no instructions. Cost was not paid. Plaintiffs evidence was closed. Defendants led no evidence and the arguments of their counsel were heard and the suit was dismissed. 3. The learned single Judge in his order of reference has made pointed reference to two decisions of this Court for consideration. The first is Ram Karan vs. Radha Mohan (1) and another is Shantilal vs. State(2). In Ram Karans case (1) the suit was fixed for the plaintiffs evidence and was adjourned at his request. On the adjourned date the plaintiff and his witnesses were absent and the suit was dismissed under Order XVII, rule 3, C.P.C. Bapna and Sharma, JJ. held that as there was no material on the record no decision on merits as envisaged by Order XX, rule 4 of the Code of Civil of Procedure was possible and, therefore, the order off dismissal should be deemed to have been passed under O. XVII, R. 2 C.P.C. In Shantilals case (2) after framing of the issues the case stood fixed for these plaintiffs evidence. At the plaintiffs request it was adjourned three times. The plaintiffs statement was recorded and at his request again the suit was adjourned on payment of costs. On the adjourned date the plaintiff did not appear. The District Judge, before whom the suit was pending, proceeded under Order XVII, R. 3 C.P.C. and dismissed the suit. It was urged in appeal before this Court that the District Judge had no jurisdiction to proceed under Order XVII, R. 3 C.P.C. Wanchoo C.J., as he then was, and one of us who decided the case, held that the District Judge was right in proceeding under Order XVII R. 3 C.P.C. It was also observed that, "......though we express with respect some doubt about the view that there must be material on record before a Court can proceed under Order XVII, R. 3 C.P.C. we need not express any firm opinion on the point in the circumstances of this case. In this case there were some materials and the Court looked into these materials before dismissing the suit under Order XVII, R. 3 C.P.C." 4. Before we notice the persisting divergence between the various High Courts of India regarding the applicability of Order XVII, R. 2 or R. 3 C.P.C. we might also notice a few other cases of this Court which have some bearing on the subject. 5. The first reported case on the subject is Amarsingh vs. Mst. Nandkanwar (3). In this suit for compulsory registration issues were framed and preliminary issues were decided. Negotiations for compromise were in progress and an adjournment was obtained to conclude the same. The plaintiff undertook to produce his own witnesses but on the adjourned date of hearing no evidence on behalf of the plaintiff was produced and the suit was dismissed under Order XVII, R. 3 C.P.C. because the plaintiff failed to produce his evidence. Wanchoo, C.J. and Modi, J., held that although there was no evidence before the Court to come to a decision on merits but having regard to the fact that the burden was on the plaintiff which he failed to discharge the Court could and did rightly dismiss the suit under Order XVII, R. 3 C.P.C. Ganga Das Vs. Mst. Gopli(4), to which one of us was a party, was a suit which was fixed for plaintiffs evidence on a particular date. Mst. Gopli(4), to which one of us was a party, was a suit which was fixed for plaintiffs evidence on a particular date. The process issued for the attendance of the plaintiffs witnesses was not returned to the Court and the case was adjourned. On the adjourned hearing the plaintiff and his counsel were absent. In the first instance the Court proceeded under Order XVII, R. 2 adding, however, that the suit will be disposed of early on merits. The defendant moved an application that his evidence may be recorded. The Court granted that application and recorded the statement of the defendant and dismissed the suit. On the same date the learned counsel for the plaintiff presented an application for restoration of the suit. It was contested by the defendant on the ground that it was not maintainable as the Court had proceeded to dispose of the case under R. 3 and not under Order XVII, R. 2 G. P.C. This objection was turned down and the restoration application was allowed. The defendant came up in revision to this Court and it was held that it was competent for the plaintiff to move an application and it was rightly allowed by the trial Court. It was also observed that it was open to Court to proceed under R. 3 even if the party to whom time was granted to produce evidence or to perform any other act necessary for the further progress of the suit was absent. But it was discretionary for the Court to apply R. 2 even in such circumstances. 6. It was also observed that it was open to Court to proceed under R. 3 even if the party to whom time was granted to produce evidence or to perform any other act necessary for the further progress of the suit was absent. But it was discretionary for the Court to apply R. 2 even in such circumstances. 6. Chronologically stated the view taken by this Court in regard to the applicability of Order XVII R. 2 and 3 is that in Amarsinghs case (3) it has been held that R. 3 was applicable even if there was no material on record and a suit could be decided on considerations of the burden of proof; in Ram Karans case (1), which incidentally has not taken any notice of Amarsinghs case (3), it has been held that existence of material was a condition precedent for the applicability of R. 3; in Shantilals case (2) the correctness of the view taken in Ramkarans case (1) has been doubted; and in Ganga Dass case (4) no definite opinion has been expressed on the question of the existence of material or otherwise but the matter has been largely left to the discretion of the trial Court. 7. The decisions of other High Courts on the question of the applicability of R. 2 and 3 of Order XVII are not uniform. There are two clearly divergent lines that have been adopted. The one is led by a Full Bench decision of the Madras High Court, which we might conveniently call the Madras view, and the other is as by the Calcutta High Court which we might refer to as the Calcutta view. Some of the important cases adopting these divergent lines may also be noticed. 8. In Prativadi Bhayankaram Pichemma vs. Kamisetti Sareeramulu (5) the Full Bench of the Madras High Court has held that R. 2 and 3 of Order XVII of the Code of Civil Procedure are mutually exclusive. Where the conditions of R. 2 are fulfilled even if the circumstances envisaged by R. 3 are existent and applicable, R. 2 should be applied. In Prativadi Bhayankaram Pichemma vs. Kamisetti Sareeramulu (5) the Full Bench of the Madras High Court has held that R. 2 and 3 of Order XVII of the Code of Civil Procedure are mutually exclusive. Where the conditions of R. 2 are fulfilled even if the circumstances envisaged by R. 3 are existent and applicable, R. 2 should be applied. The reasons which persuaded the learned Judges to make this preference are that when a party has failed both to appear as well as to produce evidence or to perform an act for which time was granted to it, it will be unjust in the partys absence to assume that its failure to produce evidence or to perform the act was unjustified he being absent and, therefore, unable to offer any explanation for its failure to produce evidence or to do acts in furtherance of the progress of the suit. Equity demanded that the Court should proceed under Order XVII, R. 2 C.P.C. treating the case to be one of mere absence. Wallis, C.J., a member of this Full Bench of the Madras High Court, however, expressed a different view that R. 2 and 3 were not mutually exclusive. M. Agaiah Vs. Mohd. Abdul Kereem (6) is a full Bench decision of the Andhra Pradesh High Court which has adopted the view taken by the Madras High Court in Prativadis case (5). The Andhra Pradesh High Court has not referred to the decisions of other High Courts which have taken a contrary view. The High Court of Rangoon in Ma Hla Nyun Vs. Ma Aye Myint (7) the High Court of Nagpur in Bhioraj Jethmal Vs. Janardhan Nagoran (8) and Judicial Commissioners Court of Bhopal in Hashmat Rai Vs. Lalchand (9) have adopted the same view as the High Court of Madras. 9. The other view taken by the Calcutta High Court in Marannissa Vs. Ramkalpa Gorsin (10) considered the relationship between secs. 157 and 158 of the Code of Civil Procedure, 1882, which correspond to Order XVII R. 2 and 3 respectively of the Code of Civil Procedure of 1908 and expressed the view that the existence of material was necessary for the application of sec. 158 which corresponds to R. 3 Order XVII. In this case issues were framed and after various adjournments the case came up for hearing on 10th March, 1905. 158 which corresponds to R. 3 Order XVII. In this case issues were framed and after various adjournments the case came up for hearing on 10th March, 1905. The plaintiff had asked for and obtained process for witnesses but as they did not appear on the date fixed for trial the plaintiff prayed for the issue of warrant of arrest for one of them. This application was refused. The pleader for the plaintiff thereupon intimated to the Court that he had no further instructions to appear in the case and the subordinate Judge dismissed the suit for want of prosecution. When the plaintiff made an application to set aside the order of dismissal under Sec. 102 (Order IX R. 8) the defendant took a preliminary objection that the suit had been dismissed not under Sec. 158 (O. XVII, R. 3) and consequently the remedy of the plaintiff was by way of review and not for restoration. The plaintiff eventually appealed to the High Court. The learned Judges observed— "It is obvious that the scope of Sec. 157 is quite distinct from that of Sec. 158. Sec. 158 appears to contemplate a case in which the Court has materials before it to enable it to proceed to a decision of the suit ... ... what sec. 158 provides is, that the mere fact of a party making default in the performance of what he was directed to would not lead to the dismissal of the plaintiffs suit, if he was the party in default, or the decreeing of the claim against the defendant, if the defendant was the person, who made the default; the words notwithstanding such default clearly imply that the Court is to proceed with the disposal of the suit in spite of the default, upon such materials as are-before it. Sec. 157, on the other hand, speaks of the disposal of the suit, and undoubtedly includes cases in which there might not be any materials before the Court to enable it to pronounce a decision on the merits, for instance, if the event contemplated in secs. 97, 98, 99, cl (a) and 102 happens, although, if the contingency mentioned in sec. 100, cl. (a) happens, there would be materials before the Court, and a decision on the merits. ... ... ... ... ... ... 10. Another case of the Calcutta High Court is Brojendra Nath Ganguly Vs. 97, 98, 99, cl (a) and 102 happens, although, if the contingency mentioned in sec. 100, cl. (a) happens, there would be materials before the Court, and a decision on the merits. ... ... ... ... ... ... 10. Another case of the Calcutta High Court is Brojendra Nath Ganguly Vs. Promatha Bhusan Dev(l 1). One of the issues in the suit was a question of jurisdiction. On the date fixed the plaintiff was absent but the Court nevertheless returned the plaint to be presented to proper Court. The question which arose was whether R. 2 or R. 3 of Order XVII applied. The learned judges held that before R. 3 could apply two conditions must co-exist, namely, (e) that an adjournment must have been at the instance of a party: and (b) that there must be material on record for the Court to proceed to decide the suit. The presence of one without another does not justify the application of R. 3 to such a case. 11. A Full Bench decision of the High Court of Bombay in Basalingappa Kushappa Kumbhar Vs. Shidramappa Irappa Shivanagi(l2) considered a similar question. A decree was passed by the trial Court on the evidence led by the plaintiff. "The defendant and his witnesses were absent and the defendants counsel had withdrawn from the suit after making an unsuccessful application for adjournment. The question which arose was whether the decree was an ex-parte decree or a decree on merits. The learned Judges adopted the view taken in Mariannissas case(10) and held that the view that R. 2 and 3 are in direct conflict with each other was incorrect and even in a case of double default R. 2 could apply. 12. In Ghulam Hyder Khan Vs. Tekchand(13) of the Judicial Commissioners Court of Sind the circumstances were that one of the defendants could not be served as the plaintiff was unable to furnish his whereabouts. Several adjournments were granted to the plaintiff and on the last adjourned hearing both the plaintiff and his counsel were absent. The suit was dismissed. The question arose whether O. XVII R. 2 or R. 3 applied. The opinion expressed was that R. 2 should apply because the conditions laid down by R. 2 and R. 3 coincided and R. 3 being restrictive of the future remedies of an absent-party should not be preferred. The suit was dismissed. The question arose whether O. XVII R. 2 or R. 3 applied. The opinion expressed was that R. 2 should apply because the conditions laid down by R. 2 and R. 3 coincided and R. 3 being restrictive of the future remedies of an absent-party should not be preferred. Another case of Sind is Virumal Tekchand Vs. Kalusing Manjusingh(14), where the learned Judges of the Chief Court of Sind did not accept the view of the Full Bench Madras case and expressed the opinion that the provisions of Order XVII, R. 3 being stringent should be applied in exceptional cases and unsuccessful partys future remedies were not to be lightly restricted. Therefore, it was preferable that Court should exercise its discretion by applying R. 2. 13. In Union of India Vs. Mangilal Jain(15) of the Patna High Court the defendants two witnesses were ill and an adjournment was sought by the defendant but it was refused by the trial Court. The suit was decided ex-parte. The learned Judges held that a default on the part of the defendant did not necessarily mean that the suit must be decided on merits under Order XVII, R. 3 and the discreation was left in the Court even in cases of the default under the provisions of Order XVII, R.3 either to proceed to decide the case on merits or to give an ex-parte decree in accordance with the provisions of Order XVII, R. 3 of the Code of Civil Procedure. 14. In Mst. Gigi Agarwallini Vs. Baleswar Tewari(16), which was a suit for eviction, plaintiffs five witnesses were examined and cross-examined. The defendant prayed for an adjournment, which was allowed. On the adjourned date the plaintiff was reedy but the defendant again sought an adjournment which was refused. The defendants counsel withdrew. The Court proceeded under Order XVII R. 3 and passed a decree for eviction. The learned Chief Justice of the Assam High Court who decided the case dissented from the view taken in Prativadis case(5)of the Madras High Court and adopted the view taken by the Calcutta High Court in Brojendra Naths case(l 1) for reasons given in the Calcutta decision. 15. In Ramratan Vs. Sughad Singh(l 7) a case before the High Court of Madhya Bharat the situation was that issues were framed but the plaintiffs witnesses were not examined. 15. In Ramratan Vs. Sughad Singh(l 7) a case before the High Court of Madhya Bharat the situation was that issues were framed but the plaintiffs witnesses were not examined. The case was under the Gwalior Civil Procedure Code, sec. 159 and 160, which corresponded to Order XVII, R. 2 and 3 of the Indian Civil Procedure Code respectively. Relying on the Sind cases the learned Judge held that as there was no material before the court to enable it to pronounce a decision on merits, the order of dismissal should be construed to be one made under Order XVII, R. 2 C.P.C. 16. The learned Judges of the High Court of Lahore in Jhanda Singh Vs. Sadiq Mohammed(18) dissented from the view taken by the majority in Prativadis case(5) of the Madras High Court and held that the existence of material was necessary for the applicability of Order XVII, R. 3 C.P.C. 17. We have not taken notice of the cases decided by the Allahabad High Court as the said Court has made an amendment to Order XVII, R. 2 and 3 and, therefore, the decision of that Court have been influenced by the amendment. 18. On a survey of the aforesaid decisions, broadly speaking, the Madras view is that if a party was absent Order XVII, R. 2 alone applied and not R. 3. The Calcutta view is that in case an adjournment was granted to a party for production of evidence or doing of any other act necessary for progress of a suit and the party was absent it was a case of double default but Order XVII, R. 3 would not apply unless there was material on record enabling the Court to decide the suit on merits;. None of the decided cases of the Rajasthan High Court has adopted the Madras view. In fact that view has not been accepted in Ramkarans case (1). Three view, however, have been expressed by this Court which we have already noticed earlier. The question which arise for consideration, therefore, may now be formulated : If a plaintiff makes default in producing evidence and also absents himself can a suit be decided under Order XVII rule 3? Three view, however, have been expressed by this Court which we have already noticed earlier. The question which arise for consideration, therefore, may now be formulated : If a plaintiff makes default in producing evidence and also absents himself can a suit be decided under Order XVII rule 3? Order XVII, R. 2 and 3 read as follows— "R. 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 IX or make such other order as it thinks fit." "R. 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." 18. R. 2 confers discretion in the Court, in the event of a party being absent, either to dispose of the suit in one of the modes directed by O. 9 or to make such other order as it thinks fit. R. 3, however, envisages a situation where a party to whom time has been granted for the production of evidence or for the performance of any other act necessary to the further progress of the suit and such party fails to produce the evidence or to perform the act for which time had been allowed the Court may notwithstanding such default proceed to decide suit forthwith. When a party to whom time has been granted for the production of evidence or for the performance of any other act also does not appear it is clearly a case of double default. Not only the party has failed to do that for which time was granted to it but has also failed to appear. In our opinion this double default does not take away the case from the purview of O. XVII, R. 3. We are unable to agree with the interpretation given in the Full Bench Madras case that rules 2 and 3 are mutually exclusive. In our opinion this double default does not take away the case from the purview of O. XVII, R. 3. We are unable to agree with the interpretation given in the Full Bench Madras case that rules 2 and 3 are mutually exclusive. There can be cases as the one before us, where time was granted to a party to produce evidence but the party not only failed to produce evidence but also absented itself and it cannot be said that O. XVII, R. 3 cannot apply to such a case. 19. In a long series of decisions adopting the view of the Calcutta High Court for diverse reasons it has been held that the existence of material is necessary for deciding a suit under O. XVII, R. 3. The language of the statute does not expressly indicate the existence of material as an essential condition for its application. This interpretation has been influenced apparently by the word decide to mean decide on merits. In Ramkarans case (1) the learned Judges of this Court felt persuaded by the provisions of O. XX, R. 4 of the Code of Civil Procedure to hold that the existence of material was necessary and because only pleadings and issues were on record they opined that the dismissal should be construed to be one under O. XVII, O. 2. On the other hand in Amarsinghs case (3), the learned Judges were of the view that where the plaintiff failed to discharge the burden placed on him in the suit, the logical conclusion was that the suit should be dismissed whether material existed or not. No decision has attempted to indicate the exact kind or quantum of material which is requisite for the operation of O. XVII, R. 3. The difficulty of such a task is easy to appreciate. In the wide varieties of cases and complexities of situation formulation of universal rules, is a task not easy of attainment. The indications, however, are as in Ramkarans case (1) that the material may mean evidence on record. The obvious question which arises next is whether can absence of evidence altogether exclude the applicability of O. XVII, R. 3 ? It is difficult to lay down such a wide proposition. The indications, however, are as in Ramkarans case (1) that the material may mean evidence on record. The obvious question which arises next is whether can absence of evidence altogether exclude the applicability of O. XVII, R. 3 ? It is difficult to lay down such a wide proposition. The intention of O. XVII, R. 3 as has been noticed is that a party seeks time to produce evidence or do something to further the progress of a suit and makes default in doing either, a Court may decide the suit forthwith. To our mind, it is too wide a proposition to lay that in no case where evidence has not .-been led R. 3 would be inapplicable. The test should be whether the Court before whom the suit is pending on the basis of material before it is in a position to decide the suit forthwith, the default of a party notwithstanding? The pleadings of the parties and issues arising therefrom may in some cases enable a Court to decide the suit forthwith. Suppose in a suit on a promissory note the execution of which has not been denied by the defendant and the defendant pleads want of consideration seeking time to produce evidence. Time is allowed but he makes default in producing evidence. Can the suit be not decided in view of the legal presumption contained in sec. 118 of the Negotiable Instrument Act. In a converse case the defendant denies execution and the plaintiff granted time to prove execution and he makes default. Can the suit be not decided on the ground of the default made by the plaintiff in discharging the burden of proof placed on him. In the first illustration it can perhaps be said that the promissory note execution whereof has been admitted constitutes evidence and there is material on record to attract the applicability of R. 3. In the second illustration, however, the execution not having been admitted there is obviously no evidence. The plaintiff fails to discharge his duty. Can we say that the suit should be disposed of in accordance with O. IX as per O. XVII, R. 2. The answer is plainly in the negative for the situations envisaged under O. IX, are different than the one we have in the illustration. The plaintiff fails to discharge his duty. Can we say that the suit should be disposed of in accordance with O. IX as per O. XVII, R. 2. The answer is plainly in the negative for the situations envisaged under O. IX, are different than the one we have in the illustration. Can it be said that the Court may pass such other order as it thinks fit as laid down in R. 2 of O. 17 ? Such an order can be no other than to adjourn the case for plaintiffs absence in a situation such as this. Therefore, if the plaintiff fails to discharge the burden placed on him in view of the pleadings and consequent issues despite the opportunity afforded to him the case cannot be adjourned for his evidence ad infinitum and the Court at some stage or the other has to decide it for want of evidence. Even in a contested suit issues are sometimes decided for want of evidence and so can the whole suit. Therefore, in our opinion the existence of material does not necessarily mean existence of evidence. If a suit can be decided despite the lack of evidence on the material before it O. XVII, R. 3 can be said to govern the case. Material on record need not be given a technical meaning and equated to evidence. The circumstances of each case will regulate the exercise of discretion vested in a Court. It is for the Court to exercise its discretion and to indicate without ambiguity whether it is exercising its powers under O. XVII, R. 3 or not. It is correct that the application of R. 3 restricts the future remedies of a defaulting party and is a stringent provision and, therefore, it should be applied with circumspect caution and judicial restraint. Ramkarans case, therefore, has to be read with the aforesaid modification. No exception can, however, be taken to the reasoning adopted in Amarsinghs case. 20. Now in the case before us the learned Munsiff wrote out a judgment and decided all the issues and dismissed the suit under O. XVII, R. 3. It cannot be said that he exercised his jurisdiction with material irregularity. Whatever view another Munsiff may have taken the Munsiff, Bikaner cannot be said to have exercised his jurisdiction with material irregularity and, therefore, no interference in this revision is called for. 21. It cannot be said that he exercised his jurisdiction with material irregularity. Whatever view another Munsiff may have taken the Munsiff, Bikaner cannot be said to have exercised his jurisdiction with material irregularity and, therefore, no interference in this revision is called for. 21. This revision application, therefore, fails and is dismissed with costs.