ORDER 1. The facts and circumstances leading to this revision petition are that a suit filed by the opponent in the Court of the Civil Judge, Class II, Jabalpur, claiming a decree for specific performance of a contract for re-conveyance of a house situated in Marhatal, Jabalpur, was dismissed by the trial Court on 6th December 1962 by making an order purporting 10 be under Order 17, rule 3 of the Code of Civil Procedure. On this date the evidence of the plaintiff's witnesses was to have been recorded. But when the case was taken up for hearing, the plaintiff and his counsel both were absent. The learned Civil Judge, therefore, dismissed the suit by recording the following order: "I, therefore dismiss the suit u/o 17 R. 3, C. P. C. as adjournment was granted to the plaintiff on his request and he was to produce his witnesses but he has failed to do so........." On the earlier case of hearing, that is, 29th November 1962, the plaintiff was present in person, but he asked for an adjournment on the ground that his counsel was ill. This request of the plaintiff was granted by the trial judge on the condition of the plaintiff paying Rs. 30 as costs to the defendant. 2. The plaintiff then preferred an appeal from the order of the trial judge dismissing his suit. The learned Additional District Judge, Jabalpur, who heard the appeal, allowed it and setting aside the order of dismissal passed by the original Court remanded the matter to that Court for disposal according to law. The learned Additional District Judge took the view that the order passed by the trial Court under Order 17, Rule 3 dismissing the plaintiff's suit was not any decision or the suit on merits; and that in fact there was no material on record to enable the Court to decide the case on merit. He also observed that the trial Judge did not consider the fact that the burden of proving the three issues framed in the suit was on the defendant-petitioner; and if the plaintiff was absent, he should have recorded the evidence of the defendant and then disposed of the suit on merits. It is against this decision of the Additional District Judge, Jabalpur, remanding the case that the present revision petition has been filed. 3. It is against this decision of the Additional District Judge, Jabalpur, remanding the case that the present revision petition has been filed. 3. In my opinion, the decision of the Additional District Judge cannot be upheld. It is well settled that Order 17, rule 3 applies only if time is granted to a party for producing his evidence, or for causing the attendance of his witnesses, or for performing any other act necessary to the further progress of the suit and he fails to do at the adjourned hearing the act for which time was granted to him; and the Court can proceed to decide the suit forthwith. Rule 3 pre-supposes the appearance of the party at whose instance the case was adjourned but who is unable to give proper explanation for his omission to perform the specific act or acts for which the adjournment was granted at his instance. (See Motilal Joshi vs. Mohd. Shafi AIR 1956 Nag. 179 and Bhivraj vs. Janardhan 30 NLR 94. The expression "the Court may, notwithstanding such default, proceed to decide the suit forthwith" used in rule implies that there must be material on record to enable the Court to exercise its proper discretion by deciding the case on merits, and an order merely "dismissing the suit" because of the default of the party in performing the specific act or acts for which he had obtained time is not any decision disposing of the suit on merits. 4. In the present case, it is obvious from the order recorded on 29th November 1962 that on that date the hearing of the suit was adjourned under Order 17, rule 1 on the request of the plaintiff that as his counsel was ill and unable to appear in the Court the case should be adjourned. The request was granted but the adjournment was not granted for enabling the plaintiff to perform any of the acts spoken of in rule 3. When, therefore, the plaintiff and his counsel both failed to appear on the adjourned bearing, that is, on 6th December 1962, the Court could not make any order under rule 3 as that rule had no applicability in the circumstances and for the purpose for which the adjournment was granted on the previous date of hearing. When, therefore, the plaintiff and his counsel both failed to appear on the adjourned bearing, that is, on 6th December 1962, the Court could not make any order under rule 3 as that rule had no applicability in the circumstances and for the purpose for which the adjournment was granted on the previous date of hearing. The rule was inapplicable also for the reason that on 6th December 1962 there was no appearance at all on behalf of the plaintiff. When the plaintiff was absent on 6th December 1962 and the adjournment had not been granted to him of the earlier date for performing any of the specific act or acts mentioned in rule 3, the trial Court should have dismissed the suit under Order 17, rule 2. But it did not do so, and instead passed an order under rule 3 dismissing the suit. 5. When the trial judge expressly passed an order under Order 17, rule 3, dismissing the suit although it had no power to proceed thereunder and acted erroneously in doing so, the plaintiff's only remedy was no doubt of riling the appeal which he did in the Court of the Additional District Judge, Jabalpur. In that appeal what the learned Additional District Judge had to consider was not whether there was or was not material for deciding the suit on merits under rule 3, or whether there was any reasonable excuse for the plaintiff for failing to perform any act necessary to the further progress of the suit. He could not have also considered the question whether the order passed by the trial Court under Order 17, rule 3, should be treated as dismissal under Order 17, rule 2. When a decree dismissing a suit under Order 17, rule 3, is passed, the appellate Court cannot clearly treat the dismissal as one under Order 9, rule 8 read with Order 17, rule 2 and set it aside under Order 9, rule 9. (See Govardhan Vs. Ganesh, 1962 MPLJ 325. The Question that needed consideration in the appeal was whether when Order 17, rule 3, was not applicable to the suit and there was no appearance on the behalf of the plaintiff on the date of hearing, the order of the trial Court dismissing the suit under Order 17, rule 3, should be substituted by an order under Order 17, rule 2, dismissing the suit. There is a distinction between tae appellate Court itself treating a dismissal under order 17, rule 3, as all order under Order 17, rule 2, and setting it aside and the appellate Court passing a proper order which the trial Court should have passed in the circumstances of the case. It is easy to see that if in circumstances such as those obtaining in the present case all erroneous order passed by the original Court under Order 17 rule 3 is set aside and the suit is remanded to the trial Court for disposal according to law, the plaintiff who failed to appear at the adjourned hearing is placed in a better position than the plaintiff whose suit is dismissed under Order 17, rule 2, for default of appearance. If the plaintiff-opponent's suit had been dismissed by the learned Civil Judge under Order 17, rule 2, for default of his appearance, then the plaintiff would not have been able to have the suit restored without showing sufficient cause. The result of the passing of an erroneous order under Order 17, rule 3, by the trial Judge and of the decision of the Additional District Judge setting aside that order on the ground of its being erroneous and without jurisdiction and restoring the suit has been that the opponent has been able to get his suit restored without showing any cause at all for his failure to appeal on 6th December 1962. 6. In my opinion, in cases where the trial Court erroneously dismisses a suit under Order 17, rule 3, when it should have dismissed the suit for default of appearance of the plaintiff under Order 17, rule 2, the proper order to pass in an appeal from an erroneous order under Order 17, rule 3, dismissing the suit for default of appearance of the plaintiff is of substituting the order of the trial Court by an order dismissing the suit under Order 17, role 2, and not of remanding the suit for disposal according to law after setting aside the order under Order 17, rule 3. This was the course which was adopted in Rukmansa vs. Shankargouda, AIR 1941 Bom. 83. The factor of that case where that in a suit for recovery of Rs. 11,000 the defendants admitted that a sum of Rs. 5,976 and certain interest was due from them. This was the course which was adopted in Rukmansa vs. Shankargouda, AIR 1941 Bom. 83. The factor of that case where that in a suit for recovery of Rs. 11,000 the defendants admitted that a sum of Rs. 5,976 and certain interest was due from them. After the framing of the issues, the hearing of the suit was adjourned to 15th February 1939. On that date, the plaintiff's pleader asked for an adjournment on the ground that the plaintiffs was ill. The adjournment was refused, and the pleader thereupon withdrew saying that be had no instructions. The trial judge then passed a decree against the defendants for the amount admitted by them and dismissed the plaintiff's suit for the balance. The plaintiff then appealed in the Bombay High Court contending that the balance of his claim should have been dismissed under Order 9, rule 8, for want of appearance and if an Order in that form had been made, he would have been able to apply for setting aside the dismissal order under Order 9, rule. 9 Beaumont C.J., after pointing out the distinction between Order 17, rule 2, and Order 17, rule 3, gave effect to this contention. He said:- ".........even under R. 3 the Court must have material to enable it to exercise it, proper discretion by deciding the case on merits. In this particular case I do not think that R. 3 applied. The hearing of the suit had been adjourned under O. 17, R.3, for the production of evidence by the parties, and I do not think a general adjournment of that kind can be said to be an order bringing into operation O. 17, R. 3. Even if this rule did apply, there was no material for deciding the case on merits. In my view this case fell within R. 2 only, and the learned Judge had no material before him to justify him in disposing of the plaintiff's case on merits by dismissing that part of the claim which was not admitted. Even if this rule did apply, there was no material for deciding the case on merits. In my view this case fell within R. 2 only, and the learned Judge had no material before him to justify him in disposing of the plaintiff's case on merits by dismissing that part of the claim which was not admitted. I think then fore that the appeal must be allowed, and the order of the lower Court must be varied by adding thereto the words: "And the balance of the plaintiff's claim is dismissed for want of appearance." (underlining is mine) The decision of the Bombay High Court lends support to the view expressed by me that in a case, such as the present one, the erroneous order of the original Court under order 17, rule 3, dismissing the suit should be substituted by an order dismissing the writ under Order 9, rule 8 read with Order 17, rule 2. 7. It is needless to add that when the order of the Civil Judge under Order 17, rule 3 is substituted by an order under Order 9, rule 8 read with Order 17, rule 2, then it would be open to the opponent to apply to the original Court for setting aside the order of dismissal. No difficulty in regard to limitation for such an application can arise if the contention that the date on which this Court's order is pronounced should be taken as the date of the dismissal of the opponent's suit for default of appearance is accepted. If on the other hand, it is urged that the date on which the learned Civil Judge passed the order under Order 17, rule 3, should be taken as the date of dismissal of the suit for default of appearance, still it wou1d be open to the plaintiff to make an application for setting aside the order of dismissal taking the said of sect on 5 of the Limitation Act, whether of 1908 or of 1963. By an amendment made in this State to Order 9, rule 9, section 5 of the Limitation Act, 1908, has been applied to applications under that rule. As is clear from the language of section 5 of Limitation Act, 1963, which came into force on 1st January 1964, it applies to applications under Order 9, rule 9. 8. For these reasons, this petition is allowed. As is clear from the language of section 5 of Limitation Act, 1963, which came into force on 1st January 1964, it applies to applications under Order 9, rule 9. 8. For these reasons, this petition is allowed. The decision of the Additional District Judge, Jabalpur, is set aside; and the order of the learned Civil Judge, Class II, Jabalpur, dismissing the opponent's suit under Order 17, rule 3, is substituted by an order dismiss sing the suit with costs under Order 9, rule 8 read with Order 17, rule 2 for want of appearance of the opponent on 6th December 1962. The petitioner shall have costs of this application and of the appeal before the Additional District Judge, Jabalpur. Counsel's fee for this revision petition is fixed at Rs 50/-.