JUDGMENT 1. - This civil miscellaneous appeal by the defendant Sheshmal is directed against the appellate judgment of the District Judge, Udaipur dated July 11, 1975 whereby the judgment and decree of the Additional Civil Judge, Udaipur dismissing the suit filed by the plaintiff-respondent Karan Singh were set aside and the case was remanded back to the Additional Civil Judge. Udaipur for recording evidence of the plaintiff. 2. The relevant facts of the case are that on December 23, 1966 the plaintiff Karan Singh filed a suit in the court of Civil Judge, Udaipur against his son Pratap Singh and the appellant Sheshmal for the recovery of possession of a plot of land fully described in para No. 2 of the plaint. It was all red by the plaintiff that he was the owner of the plot in dispute and that the defendant Sheshmal in collusion with defendant Pratap Singh, who was deadly against him took possession of the plot in dispute in the year 1964 without any authority and with a view to harm the plaintiff. 3. The suit was resisted by the defendant-appellant alone. The defendant Pratap Singh, who is the son of the plaintiff, did not put in his appearance in spite of the due service of summons. The defendant Sheshmal denied that the plot in dispute belonged to the plaintiff. He further alleged that the plot in question was purchased by him from Pratap Singh for Rs. 2250/- in the month of November 1964. He further asserted that he was put in possession of the plot in the year 1961 and he also constructed a house thereon worth Rs. 10,000/-. The defendant Sheshmal further alleged that Pratap Singh was the ostensible owner of the plot in question and he sold the plot with implied authority of the plaintiff. 4. The trial court framed issues on March 31, 1967 & adjourned the case for evidence of the plaintiff. Not a single witness was examined on behalf of the plaintiff-respondent on an) of the hearing upto 7-5-1970. On 4-7-70 the case was transferred from the court of Civil Judge to the court of Munsif, Udaipur The case was again transferred on 28-4-71, from the court of Munsif Udaipur to the court of Additional Civil Judge, Udaipur. On the hearing dated October 11, 1971 the learned counsel for the plaintiff prayed for adjournment in order to examine the plaintiff. On the hearing dated October 11, 1971 the learned counsel for the plaintiff prayed for adjournment in order to examine the plaintiff. The learned Additional Civil Judge granted adjournment on payment of Rs. 10/- as costs to the learned counsel for the defendant Sheshmal and adjourned the case to November 10, 1971 for plaintiff's evidence. Neither the plaintiff nor any witness was present on the hearing dated November 10, 1971. The learned counsel for the plaintiff again asked for an adjournment of the case. The learned trial court granted adjournment on payment of Rs. 20/- as costs and fixed the case for plaintiff's evidence on December 20, 1971. Neither the plaintiff, nor his counsel, nor an) witness was present on this adjourned hearing dated December 20, 1971. The costs awarded previously to the learned counsel for the defendant Sheshmal were also not paid by the plaintiff. The learned Additional Civil Judge, in the circumstances, dismissed the suit on merits under Order 17 rule 3 CPC. Aggrieved by the said judgment and decree the plaintiff preferred an appeal before the District Judge, Udaipur It was contended before the learned District Judge on behalf of the plaintiff that the trial court should have dismissed the suit under Order 17 rule 2 CPC instead of Order 17 rule 3 CPC. The learned District Judge overruled the above contention of the plaintiff's counsel and held that the trial court was justified in dismissing the suit under Order 17 rule 3 CPC. The relevant observations of the learned District Judge in this connection run as under: "The learned counsel for the appellant submitted before me that the trial Judge was in error in dismissing the suit under Order 17 rule 3 CPC. He should have dismissed it under Order 17 rule 2 CPC. I am sorry I am unable to contribute to the view advanced by the learned counsel for the appellant in as much as numerous opportunities were afforded to the plaintiff appellant to adduce evidence, with these opportunities extending upto a period of about 4 years after the framing of the issues. There must be a stage at which the indulgence of the court should not be sought to meet the ends of justice in granting adjournment. There must be a stage at which the indulgence of the court should not be sought to meet the ends of justice in granting adjournment. So far as applicability of Order 17 rule 3 CPC in the instant suit is concerned, I am of the view that the learned trial Judge was justified in applying this provision of law." The learned District Judge then proceeded to examine the question whether there existed any sufficient ground for not producing the plaintiff and his witnesses. In this connection the relevant observations of the learned District Judge read as under : "I had originally thought that it was a matter of collusion between the father and son depriving a bona fide purchaser for value for reaping fruit of his consideration money. The learned counsel for the appellant submitted before me that Rawat Karan Singh and son Pratap Singh are daggers drawn. According to him Pratap Singh had committed some theft in the house of his father where after he was ousted from the house. The intervention of relatives resulted in vesting some properties, with Shri Pratap Singh. The house is situated in Udaipur and known as Kanore-ki-Haveli. It has two portions partly constructed and partly lying vacant. The constructed portion was kept in the share of Pratap Singh while land lying open remained with Rawat-Karan Singh. The arbitrators submitted their award & decree in terms of the Award was passed by the Court. The execution of the said decree was sought wherein an objection was raised regarding the illegality of the decree and this court held that said decree was nullity for want of registration. Rawat Karan Singh went in appeal to the Hon'ble High Court of Judicature for Rajasthan at Jodhpur and in the month of August, 1971 the Hon'ble Court held that decree was executable and the fact that it had not been registered has no effect upon its executability. It is only on account of this fact that the matter was pending before the Hon'ble Rajasthan High Court at Jodhpur and as such Rawat Karan Singh did not examine himself & his witnesses. He had apprehended that on account of order of this court that the decree was a nullity, he would stand non-suited. It is only on account of this fact that the matter was pending before the Hon'ble Rajasthan High Court at Jodhpur and as such Rawat Karan Singh did not examine himself & his witnesses. He had apprehended that on account of order of this court that the decree was a nullity, he would stand non-suited. It is only with a view to avoiding the multiplicity of proceedings as also the costs of the suit that he did not adduce evidence." The learned District Judge then observed: "In the peculiar circumstances of this case where inordinate delay has been made in adducing evidence, I think it desirable to allow the plaintiff appellant an opportunity to adduce evidence though the case has been pending for about 8 years." 5. The learned District Judge accordingly allowed the appeal filed by the plaintiff and remanded the case back to the court of Additional Civil Judge with the direction that he should record the evidence. He further allowed Rs. 150/- as costs to the defendant Sheshmal. It is against this order that the defendant Sheshmal has come up in appeal to this Court. 6. I have heard learned counsel far the parties and gone through the record of the case. It may be stated at the outset that there is not an iota of evidence to show that the plaintiff did not examine himself and his witnesses on account of the fact that the learned District Judge had held that the decree passed in terms of the award was not executable and in appeal the High Court took a contrary view and held that the said decree was executable. No such reason was mentioned by the plaintiff in his memorandum of appeal filed before the learned District Judge. A perusal of the memorandum of appeal filed before the learned District Judge shows that the grounds mentioned there in for non-appearance of the plaintiff and his counsel on the hearing dated December 20, 1971 were quite different from the ground mentioned in the judgment of the learned District Judge. In the memorandum of appeal it was mentioned that the plaintiff was prevented from attending the court on December 20, 1971 on account of physical ailment. No medical certificate or affidavit of the plaintiff was produced in support of the above allegation. In the memorandum of appeal it was mentioned that the plaintiff was prevented from attending the court on December 20, 1971 on account of physical ailment. No medical certificate or affidavit of the plaintiff was produced in support of the above allegation. Again in the memorandum of appeal certain grounds were mentioned for non- appearance of the two learned counsel for the plaintiff on December 20, 1971 but none of the learned counsel filed any affidavit in support thereof. It is significant to note that according to the learned District Judge the High Court decided the appeal in the month of August 1971 and held that the decree based on the award was executable. If that was so, there was absolutely no excuse for the plaintiff to abstain from producing himself and his witnesses on the hearing dated October 11, 1971, November 10, 1971 and December 20, 1971. The learned counsel for the plaintiff failed to satisfy me as to what was the cause for non-appearance of the plaintiff or his counsel or to produce evidence on the hearing dated December 20, 1971. The reason assigned by the learned District Judge, as already pointed out above, is wholly unfounded & cannot be taken into consideration. There was thus no justification for the learned District Judge to remand the case for recording evidence of the plaintiff. 7. The learned counsel for the lower appellate court committed gross error in holding that the trial court was justified in dismissing the suit under Order 17 rule 3 C.P.C. According to him, since the plaintiff or his counsel was absent on the hearing dated December 20, 1971, the trial court ought to have dismissed the suit under Order 17 rule 2, CPC and not under Order 17 rule 3 CPC. The question, therefore, arises whether where a plaintiff makes a default in producing the evidence & also absents himself can a court dismiss the suit under Order 17 rule 3 CPC This question need not detain me any longer as it stands concluded by the Full Bench decision of this Court in Gopi Kishan v. Rama, AIR 1964 Raj. 147 . 147 . The relevant observations of the Full Bench are found in para No.18 at page 151 which read as follows : "Rule 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 Order 9 or to make such other order as it thinks fit. Rule 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 the suit forthwith. When a party to whom time has been granted for the production of evidence oi 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 fur 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 put view of Order 17 rule 3." 8. In the present case it is apparent from the record that time was granted to the plaintiff on his request to produce evidence in proof of his claim but he failed to produce evidence and also failed to appear before the court on the adjourned date namely December 20, 1971. In the circumstances the court was fully justified in dismissing the suit under Order 17 rule 3 CPC. 9. In the result, I allow the appeal, set aside the judgment and decree of the learned District Judge, Udaipur dated duly 11, 1975 and uphold the judgment and decree of the trial court dismissing the suit with costs. The defendant appellant Sheshmal shall get costs of this Court as well as of the lower appellate court from the plaintiff-respondent.Appeal allowed. *******