JUDGMENT T.S. Krishnamoorthy Iyer, J. 1. In this appeal filed by the defendant against an order rejecting his application under O.9, R.13, CPC., two questions arise. (1) Whether the disposal of the suit is under O.17, R.2, or R.3, CPC., and (2) if the disposal of the suit was under O.17, R.2, CPC., there was sufficient cause for the non appearance of the defendant on 6-6-1969 to which date the suit was taken up for disposal. 2. After the marking of documents on 20-3-1969 the suit was posted for trial on 26-5-1969. On that date at the request of the defendant the trial was adjourned to 6-6-1969 to quote the words of the Subordinate Judge "peremptorily". On 6-6-1969 since defendant's counsel was laid up Sri. K. Ramankutty Nair moved for adjournment on the ground that defendant's counsel was laid up and the defendant who had been to Bangalore was laid up : in Bangalore on 5-6-1969 and could not be present in Kozhikode on 6-6-1969. A telegram was sent by the defendant from Bangalore on the 5th to his counsel and the telegram has been produced along with the application filed under O.9, R.13, CPC. The learned Judge has also relied on the telegram though it has not been properly proved. O.17. R.3, C.P.C. reads: "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." The above rule can apply only when a party has been granted time to produce evidence or to cause the attendance of witnesses or to perform any other act necessary for the progress of the suit. A general adjournment of the type granted on 26-5-1969 at the instance of the defendant is not sufficient to attract Order 17, R.3, CPC. Secondly in order that the above rule can apply it is necessary to decide the suit forthwith on the merits. The suit was disposed of only on 9-6-1969. 3. In order that R.3 of O.17, CPC. may apply the disposal of the suit should be on the basis of the evidence already on record before the default occurred. In this case the only evidence of Pw. The suit was disposed of only on 9-6-1969. 3. In order that R.3 of O.17, CPC. may apply the disposal of the suit should be on the basis of the evidence already on record before the default occurred. In this case the only evidence of Pw. 1 was recorded after the default. 4. Even if all the conditions in O.17, R.3, CPC. are satisfied the words "the Court may notwithstanding such default proceed to decide the suit forthwith" show that a decision on the merits is a matter of discretion of the Court. It is not seen from the judgment decreeing the suit that the learned Judge was conscious of his discretion to proceed either under O.17, R.2 or R.3, CPC., and he decided to exercise the discretion to proceed under O.17, R.3, CPC. To apply O.17, R.2, CPC., there should be default on the parties or any of them to appear. The learned Judge would assume that because of the representation by Sri. K. Ramankutty Nair defendant's counsel was represented. We cannot agree. Sri. K. Ramankutty Nair appeared only to move for an adjournment on the ground of illness of defendant's counsel. He was not appearing in the case. When the adjournment moved by Sri. K. Ramankutty Nair was refused and when neither the defendant nor his counsel was present there was default on the part of the defendant to appear. So the provisions of O.17, R.2, CPC., are satisfied. We are therefore of the view, that the disposal is under O.17, R.2, and not R.3 and the petition filed under O.9, R.13, CPC. is wellnigh maintainable. 5. The learned Judge has not disbelieved the case of illness of the defendant's counsel. The fact that on 5-6-1969 the defendant was in Bangalore is sufficiently proved by the telegram he filed. The learned Judge said: "Even though the telegram is produced along with this application, it does not show that he was suffering from flu. All that is stated in the telegram is that be was stranded at Bangalore. The telegram was sent on 5th and the case was on 6th. So even if he was stranded at Bangalore on 5th he could have reached here on 6th and there was sufficient time to reach here. All that is stated in the telegram is that be was stranded at Bangalore. The telegram was sent on 5th and the case was on 6th. So even if he was stranded at Bangalore on 5th he could have reached here on 6th and there was sufficient time to reach here. So no reason for his absence on the hearing date is made out." When the learned Judge did not disbelieve the case that the defendant was stranded at Bangalore on the 5th it was too much to expect the defendant in court at Kozhikode on the 6th. The fact that a suit was posted for trial 'peremptorily' to a particular date cannot mean that a defendant or his counsel should not get ill on that date. We do not find any provision in the Civil Procedure Code which insists on a party to appear overlooking all inconveniences and sacrificing even his health. The learned Judge has disposed of the suit only on the 9th to which date at least he could have adjourned it. When the learned Judge has no reason to hold that there was any attempt on the part of the defendant or his counsel to protract the suit normally the prayer for adjournment should be viewed with favour when it is supported by adequate reasons. The attempt of the courts should not be to dispose of suits somehow or other. We are satisfied that in this case there are proper reasons for the non appearance of the defendant on the day on which the suit was taken up for disposal. We, therefore, set aside the order of the court below and allow the appeal. But in the circumstances, we make no order as to costs.