( 1 ) THE respondent in these two appeals filed O. S. No. 78/70 and O. S. No. 88/70 on the file of the Civil Judge, Civil Station, Bangalore. The earlier suit is one for the recovery of Rs. 21,065 said to be due on a promissory note executed by the defendant. The second is a suit for the recovery of rs. 7,565 partly towards arrears of rent and partly towards mesne profits and for the recovery of possession of the property. These two cases were being posted together as the parties in both the cases are the same. The cases came up for hearing after series of adjournments on 2-4-1970. On 2 1-1970, the order sheet in O. S. No. 78/70 reads as follows:"defendant's Counsel prays for adjournment. Plaintiff's Counsel opposes. Defendant's Counsel says, he has to obtain certain copies and is not ready to get on with evidence. Adjourned as a final chance on 14-4-1970 on costs of Rs. 15-00. "in O. S. No. 88/70, the order sheet reads as follows:"p. W. 1 examined. Exts. P-1, P-2 marked. Cross-examination to begin on 14-4-1970. Counsel for the defendant says that he has to obtain some certified copies. Defendant's Counsel informed that on no account further adjournment will be granted in this case and both side should close on next date. " ( 2 ) ON 14-4-1970, the order sheet in O. S. 78 of 1970 records:"cost not paid. Defendant in person says that hie Advocate is not in station and prays for adjournment. Plaintiff's Counsel seriously opposed adjournment as the case was adjourned as a final chance and even costs are not paid. The adjournment is refused. The defendant is not willing to give evidence in the absence of his Counsel. Hence defendant side is closed. At this stage, the defendant said that he would fetch another Lawyer and promised to return within 15 minutes, though he went at 11-50 a. m. he has not returned till 12-30 p. m. Thereafter P. W. 1 examined and Exts. P-l and P-2 marked. Plaintiff's side closed. Heard plaintiff's Counsel. "the judgment was pronounced on the same day decreeing the plaintiff's suit as prayed for with costs. In the later suit, the order sheet of 14-4-1970 records as follows:"defendant in person. Says he cannot cross-examine the plaintiff as his Advocate is out of station. Plaintiff's Counsel very seriously opposes the adjournment. Plaintiff's side closed. Heard plaintiff's Counsel. "the judgment was pronounced on the same day decreeing the plaintiff's suit as prayed for with costs. In the later suit, the order sheet of 14-4-1970 records as follows:"defendant in person. Says he cannot cross-examine the plaintiff as his Advocate is out of station. Plaintiff's Counsel very seriously opposes the adjournment. As the case was adjourned as final chance further adjournment is refused. Plaintiff's side is closed. Defendant says he cannot lead his evidence as his Advocate is absent. Hence, defendant's side is also closed. Heard plaintiff's Counsel. Judgment 18-4-1970. "on 18-4-70 the judgment was pronounced and the suit was decreed as prayed for with costs and other reliefs. ( 3 ) THE defendant filed two petitions registered as Mis. Nos. 19 and 20/1970 praying that the decree passed on 14-4-70 and 18-4-70 be set aside. He made these applications under Or. 9 R. 13 read with S. 151, CPC. He pleaded that when he was going to fetch his Counsel he met with an accident and there fore he could not attend the Court as he intended to do on 14-4-70. This application was opposed by the respondent denying the allegations made in the petition relating to facts and also raising an objection regarding the maintainability of the petitions. His contention is that the orders passed on 14-4-1970 in O. S. 78/70 and on 18-4-70 in O. S. 88|70 are orders made under the provision of Or. 17, R. 3 CPC. and therefore the applications are not maintainable. The learned Civil Judge has taken the view that the decisions made by the Court on 14-4-1970 and 18-4-1970 are judgments coming within the purview of Or. 17, R. 3 CPC. , and therefore holds that the petitions cannot lie and dismissed the petitions. ( 4 ) AGAINST these orders of dismissal, the petitioner defendant has filed the above miscellaneous appeals under the provisions of Or. 43 R. 1. of the CPC. ( 5 ) SRI Kodidal Manjappa, the learned Counsel appearing for the petitioner, urges that in view of the fact that the provisions of Or. 17, R. 3 of the CPC. are almost penal in character, it should not be construed strictlv. In support of this proposition, he relies upon several decisions, viz. , Dango Maroti v. Janardan Mango, AIR. 1953 Nag 223 and P Govinda Menon v. Visalakshi Ammd, AIR. 17, R. 3 of the CPC. are almost penal in character, it should not be construed strictlv. In support of this proposition, he relies upon several decisions, viz. , Dango Maroti v. Janardan Mango, AIR. 1953 Nag 223 and P Govinda Menon v. Visalakshi Ammd, AIR. 1964 Kerala 99. This proposition is unexceptionable. Wherever it is possible to construe the order in question as coming within the provision of Or. 17, R. 2, it should be so done. Even if there should he a doubt as to whether the order comes under Or. 17, R. 2 or Or. 17, R. 3 of the CPC. , the party must be given the benefit of Or. 17, R. 2 CPC. In this case it is to be seen whether the orders passed by the trial Court in the two cases on 14-4-70 and 18-4-70 came within the purview of Or 17, R 3 The derision in Siddappa Shivalingappa Doddamant v B. B. Shinde, (1963) 1 Mys L. J. 544. may be referred to in this connection. After cxtractino the provisions of Or 17, Rr. 2 and 3, the learned Judge observes that"to decide whether the decision in question falls within Rule 3 of Order XVII, the Court has to decide three subsidiary questions. They are: (i) whether the suit was posted to 14-10-1955 for the production of petitioner's witnesses or to cause the attendance of these witnesses or to perform any other act necessary to further the progress of the suit; (ii) whether the suit was decided on merits; and (iii) whether the second defendant failed to appear on that date. Before a decision can be said to come within Rule 3 of Order XVII, the suit in which the decision was given must have been posted for trial; it should have been decided on merits and the party or parties should not have appeared in Court on the date to which the case was posted. "i shall advert to this decision after stating the exact contention of the appellant's Counsel in this appeal. From the order sheet in O. S. 78|70 that is extracted already it is seen that the appellant was not willing to give evidence in the absence of his Counsel The defendant's side was closed. "i shall advert to this decision after stating the exact contention of the appellant's Counsel in this appeal. From the order sheet in O. S. 78|70 that is extracted already it is seen that the appellant was not willing to give evidence in the absence of his Counsel The defendant's side was closed. At that stage the defendant said that he would fetch another Lawyer and promised to return within 15 minutes, Though he went at 11-50 a. m. he did not turn up till 12-30 p. m when the judgment was passed. Sri Kadidal Manjappa contends that at 11-50 a. m when the case was called, the Court adjourned the case at the instance of the defendant to enable him to fetch his Counsel; when the case was again called, the defendant was absent and the Court proceeded to examine a witness and pass the judgment; in these circumstances, this is a case where the defendant was absent when the evidence was recorded and the judgment was pronounced, and therefore this comes clearly within the provisions of Or. 17, r. 2 CPC. and therefore the order of the trial Court holding that the applications under Or. 9, R. 13 CPC. would not lie is illegal. Or. 17, R. 3 does not provide for what is to be done when the case is called for the first time in Court and it is taken up later. If the party is present when the case is called for the first time, goes out and does not turn up, as represented by him and the Court proceeds to decide the suit forthwith after recording the evidence or on the basis of the evidence already recorded, it cannot be said that the party is absent. Nor can it be said that the case was adjourned. The party has been present when the case was called and what is done later is only the passing of the order after recording what transpired when the party is present earlier. It appears to me that this principle gathers strength from what happened in Siddappa Shivalingappa doddamani's case (3) referred to earlier. In that case, the Advocate who was present at the time the case was called moved for an adjournment and retired from the case when the adjournment was not granted. Thereupon the Court proceeded to pass the judgment on merits. In that case, the Advocate who was present at the time the case was called moved for an adjournment and retired from the case when the adjournment was not granted. Thereupon the Court proceeded to pass the judgment on merits. Even though the advocate retired from the case the party must be held to have appeared in Court for the purpose of R. 3 of Or. 17. Now in this case, the party who appeared earlier did not appear later. It is as good as a Counsel appearing in the case and retiring from the case when the adjournment is refused. If in those circumstances the judgment that is passed by the Court is considered as a decision given under the provisions of Or. 17, R. 3 CPC. , no distinction in principle could be made in such a case and the cases now before me because in one case the Counsel is absent and in the other the party is absent. Therefore, what is required to be seen is whether the requisites as laid down in Siddappa Shivalingappa's case (3) referred to earlier and Or. 17, R. 3 are satisfied or not. It was not contended that the suit was not posted to 14-4-1970 for adducing evidence. It is not disputed that the suit is decided on merits. Further, it is clear from the order sheet that the defendant was present when the case was called and failed to adduce evidence and later failed to turn up and therefore, it appears to me that the order passed by the trial Court, holding that the applications under Or. 9, R. 13 made by the appellant do not lie is correct. The party cannot be allowed to disable the Court from passing an order under Or. 17, r. 3 by merely absenting himself taking advantage of an indulgence shown by the Court permitting him to fetch his Counsel. What is done later is merely a continuation of the step taken earlier. ( 6 ) THE several decisions which Sri Kadidal Manjappa cited are cases which clearly come within the provisions of Or. 17, R. 2 CPC. He also relied upon a decision in Parikshti Sai v. Indra Bhoi, AIR. 1967 Orissa 14. What is done later is merely a continuation of the step taken earlier. ( 6 ) THE several decisions which Sri Kadidal Manjappa cited are cases which clearly come within the provisions of Or. 17, R. 2 CPC. He also relied upon a decision in Parikshti Sai v. Indra Bhoi, AIR. 1967 Orissa 14. It is held therein that " Rule 3 would apply to a case where the party is present in Court but committed the types of defaults referred to in the Rule". This decision cannot avail the appellants and besides, the present appeals are distinguishable on facts. Further in view of the decision of our High Court reported in Siddappa Shivalingappa's case (3), it is unnecessary to place any reliance on this decision. The appellant's Counsel also placed reliance on Huzakhal Hussain v. Chaganlal Jain, AIR. 1967 Assam 14. . It is a case where the suit was adjourned as there was an alleged compromise between the parties on the date fixed for hearing. The defendant though present did not take part in the suit and a decree was passed. It was held that the decree must be deemed to have been passed under Or. 17, R. 2 and that application under or. 9, R. 13 was maintainable. The facts in these cases are quite different and they come within the purview of Or. 17, R. 3 as mentioned by me earlier. ( 7 ) IN the circumstances of this case and the position in law as laid down by this Court in Siddappa Shivalingappa's case (3), and Or. 17, R. 3, cpc. , the decision of the trial Court cannot be disturbed. In the result, these appeals fail and they are dismissed with costs. --- *** --- .