Judgment Hari Lal Agrawal, J. 1. Both these revision applications are by the plaintiffs of a title suit pending in the court of the Subordinate Judge, Saharsa, and are being disposed of by this judgment. 2. The principal question that arises for decision by this court in these applications is as to whether on the failure of petitioners to produce further evidence on a date fixed for hearing in the suit, the trial court should have proceeded under the provisions of Order 17, Rule 2 of the Code of Civil procedure, or should have taken recourse to Rule 3 thereof. 3. The facts necessary to appreciate this question, briefly stated are these : the petitioners instituted the title suite in question for declaration of title and recovery of possession of certain properties from defendants first party, described in Schedule I, and for confirmation of possession of Schedule II properties. On 20.7.1978, a date fixed for hearing in the suit, the petitioners applied for time on the ground of illness of petitioner no.3, who was the main person looking after the suit, as on that account the petitioners could not arrange for further evidence. But the prayer was rejected and the suit was taken up. On that day the petitioners examined only two witnesses who were quite formal in nature, being pleaders clerks, who proved the vakalatnama and the endorsement thereon, and the case was adjourned to 22.7.1978 on that day the petitioners renewed their prayer for time. The trial court, however, declined adjournment and the petitioners, therefore, examined yet another again a most formal witness. The suit was then adjourned to 24.7.1978 (23.7.1978 being a Sunday ). On this day no step whatsoever was taken on behalf of the petitioners-perhaps, under the impression that no useful purpose would be served by even making an application for adjournment on account of the above attitude of the trial court the court below, however closed the case of the plaintiffs and directed the defendants to begin their case, who examined one witness on that day and he was discharged after his evidence-in-chief. The suit was then adjourned to the next day. On that day also the defendants examined only one witness. The suit was then adjourned to 26.7.78. On this day also one witness was examined by the defendants. 4. On 26.7.78 two petitioners were filed on behalf of the petitioners. The suit was then adjourned to the next day. On that day also the defendants examined only one witness. The suit was then adjourned to 26.7.78. On this day also one witness was examined by the defendants. 4. On 26.7.78 two petitioners were filed on behalf of the petitioners. In the first petition, after giving explanation for their absence on the previous dates, they prayed for permission to adduce further evidence, and by the other petition they prayed for the recall of the defendants witnesses for a cross-examination. Both these petitioners were disposed of on 29.7.78. The court below rejected the first petition for adducing further evidence by the petitioners, but allowed the second petition for recalling the defendants witnesses for their cross-examination, subject to the payment of a cost of Rs.200. The matter was adjourned to 3.8.1978. On this day the petitioners filed an application for time to move this court against the order dated 29.7.78. Time was allowed to the petitioners subject to the condition of their depositing a sum of Rs.100 by 2.30 p. m. the same day. In this way the petitioners were obliged to deposit the said amount at once and thereupon the learned Subordinate Judge passed a subsequent order that if the petitioners failed to obtain any stay order from this court by 16.8.78, the said amount would be forfeited. Civil Revision No.1851 of 1978 is directed against the earlier order dated 24.7.78 rejecting the petitioners application for time, and Civil Revision no.1850 of 1978 is directed against the aforesaid order dated 29.7.78 whereby their petition for adducing further evidence was rejected. In this way, the purport and scope of both the applications are practically the same. 5. The prayers which have been made in the applications, on their face would not have called for any interference by this court in the revisional jurisdiction as such, but learned counsel appearing for the petitioners raised a different question, as already indicated above, for my consideration, namely, that on the facts and in the circumstances of the case, the learned Subordinate Judge committed an apparent error of jurisdition by his order dated 24.7.78 in closing the case of the plaintiffs and directing the defendants to proceed with their case. In other words, the argument is that on the failure of the petitioners to take any step on that day, the court below should have dismissed the suit for non-prosecution by taking recourse to the provisions laid down under Order 17 rule 2 of the Code inasmuch as the evidence adduced so far by the petitioners was only formal in nature and, therefore, recourse to rule 3 should not have been taken, which is penal in nature. 6. In my opinion, the argument has got substance and must be accepted. My reasons for the above view are as follows : it is no doubt true that Order 17, Rule 1 of the Code vests in courts a discretion to grant time to a party at any stage of the suit. Rule 2 lays down that where, on a day fixed for hearing of the suit, "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" the words "such other order" having been differently interpreted by different high Courts, the Parliament by Act 104 of 1976 inserted an explanation to this rule to make the position clear by empowering the court to proceed with the case even in absence of a party where evidence or substantial portion of the evidence of such party has already been recorded. The explanation reads as follows ; "explanation:- Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the court may, in its discretion proceed with the case as if such party were present. " The consensus of the various High Courts in India with respect to the expression "such other order as it thinks fit", even before the addition of. the explanation by the 1976 Act, has been that these words empowered the court to grant an adjournment and not to decide the case on merits only. The power of the court to give a decision on merits has been recognised only in certain circumstances. the explanation by the 1976 Act, has been that these words empowered the court to grant an adjournment and not to decide the case on merits only. The power of the court to give a decision on merits has been recognised only in certain circumstances. None the less the rule vested, even in part-heard case, in the court a discretion either to proceed under Order IX or to give a decision on the merits. It has been farther observed that in cases where the plaintiff had adduced all his evidence or had made out oprima facie case, but was absent at the adjourned hearing, the court should proceed to give a decision on the merits and not to dismiss the suit. In this connection the provisions of rule 3 also need be noticed. According to this rule, 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,-" (a) if the parties are present, proceed to decide the suit forthwith ; or (b) if the parties are, or any of them is, absent, proceed under rule 2. " there has been an amendment in Rule 3 by the 1976 Act. Prior to the amendment the Role authorised the court in case of the above default, to "proceed to decide the suit forthwith". Although by virtue of the explanation added to Rule 2, the defaulting person will be deemed to be present at the adjourned hearing, though physically absent, and thereby by virtue of clause (a)of Rule 3, the court may proceed to decide the suit forthwith, as perhaps was done by the learned Subordinate Judge, the argument is that the explanation would apply only in a case where the whole of the evidence or, in any event, "a substantial portion of the evidence" by any party has been recorded and not otherwise, and inasmuch as the evidence of the three witnesses was not on the merits of the plaintiffs suit but was entirely formal just for the purpose of satisfying the insistence of the trial court by taking up the case, rule 3 could not be applied. 7 As far back as in the year 1922 a Bench of this Court in the case of sashibhushan Kumar and others V/s. Dwarka Prasad Marwari and others (AIR 1922 pat.2) observed that where the plaintiff had adduced no evidence, the Court ought not to take evidence so as to give it jurisdiction to act under Rule 3. The court should proceed under Rule 3 only when there are materials on the record on which court can decide the case. The same view has been expressed by a learned single Judge in the case of Chamak Lal Mandal V/s. Mauji Mandal (AIR 1929 patna 248 ). In the case of Tekchand Nenoomal V/s. Kalusing Manjusing and another (AIR 1943 Sind 94) it was observed by a Bench of that Court that powers under Rule 3 should be used only in exceptional cases and that ordinarily power under this rule should not be exercised unless case of both sides is on the record. Then again, in the case of Z,. Mahadev V/s. A. K. Anantha Krishna (AIR 1971 mysore 252), a Bench of the Mysore High Court observed that the provisions of rule 3 were almost penal in construction and must be construed strictly and whenever there was a doubt as to whether the order comes under Rule 3 or rule 2, (he party must be given the benefit of Rule 2. 8. The opposite parties have not appeared to oppose these applications and according to the assertion made by the petitioners, the three witnesses examined by them did not speak a word on the merits on their case. In these circumstances, in my considered opinion, the only course that was open to the learned Subordinate Judge was to proceed to dispose of the suit under order IX as laid down under Rule 2 of Order XVII and not to proceed under rule 3. Although the different High Courts had differently interpreted the words "such other order as it thinks fit" of Rule 2, the consensus being that ordinarily recourse should not be taken under Rule 3 unless the plaintiff had by the evidence already established a prima facie case and had brought sufficient materials on the record on which a judgment could be rested. By the addition of the explanation the position has been crystaliied by the Legislature and the same had been made a sin qua non for the application of rule 3. Recourse to. Rule 3, now cannot be taken unless either the entire evidence or a substantial portion of the evidence of the defaulting party had already been recorded. 9. For the view that I have taken, the order dated 24-4-1978 has got to beset aside and Civil Revision No.1851 of 1978 allowed. It is, therefore, not necessary to consider the other application, namely, Civil Revision no.1850 of 1978, which is directed against a subsequent order, as once the order dated 24-7-1978 itself is set aside, then the subsequent order and the proceeding in the suit subsequent thereto, namely, the examination of a few witnesses on behalf of the defendants, would stand automatically rescinded or set aside. The other civil revision application, therefore, becomes infructuous. 10. I would accordingly dismiss Civil Revision No.1850 of 1978 as having become infructuous and allow Civil Revision No 1851 of 1978 and set aside the order dated 24-7-1978 passed by the learned Subordinate judge. The effect of setting aside the order dated 24-7-1978 amounts to restoration of status quo ante, i e. , the stage in the suit prior to that date. The trial court will proceed with the suit from that stage and dispose of the same in a accordance with law. In the circumstances of the caie, I shall leave the parties to bear their own costs. 11. Before closing the judgment, however, I would like to observe that the learned Subordinate Judge should not have proceeded with the suit in the manner done by him, i. e. , taking up the suit for hearing and then go on postponing day to day for days together, examining only formal witnesses for name sake whose evidence was entirely irrelevant. Somebody proving the execution of the vakalat-nama and somebody proving the endorsement, and the like. This procedure was, perhaps, adopted by the learned Subordinate judge only to mount the number of witnesses examined by him. I would seriously depricate the growing tendency in the Subordinate Courts these days which brings the administration of justice to ridicule. Revision allowed.