JUDGMENT : D.P.S. Chauhan, J. The present second appeal at the instance of Defendant No. 2, Chitharu in Suit No. 192 of 1968, arises against the judgment and decree dated 23-8-1986 in Civil Appeal No. 28 of 1986, which was directed against the judgment and decree dated 4-12-1985 in the aforesaid suit, was admitted by this Court on the following questions of law: 1. Whether the trial of suit under Order 17 Rule 3, Code of Civil Procedure, was justified? 2. Whether Order 17 Rule 3, CPC is not applicable in the present case? 2. Since the controversy involved in the present second appeal is in a narrow compass, therefore, it is not necessary to give all the details. The brief facts of the case are that the house in dispute originally was the property belonging to joint Hindu family constituted of Sri Pashupati Nath Gupta, the Plaintiff and Defendants No. 2 to 7 which Sri Sri Nath Gupta, Defendant No. 2, was the Karta. who, in the capacity of Karta, let out the house in dispute to the Defendant No. I. There had been a partition in the joint Hindu family by means of a suit No. 302 of 1963 filed by the Defendant No. 3, Sri Brij Nath Gupta, which was decided in terms of a compromise on 17-11-1965. The house in dispute came to the share of Sri Pashupati Nath Gupta who became its exclusive owner since then. Thereafter the Defendant No. 2, Sri Sri Nath Gupta, filed Suit No. 381 of 1966 against Defendant No. 1, Chitharu, for recovery of arrears of rent on the allegation that he let out only the Chabutara to him. In this suit, Pashupati Nath Gupta and Defendants No. 3 to 7 made application for their impleadment, which was rejected This suit was dismissed by the trial court on 5-5-1967, but was decreed in Civil Appeal No. 59 of 1967 on 8-12-1967 by the appellate court for recovery of Rs. 360-00 Sri Sri Nath Gupta, the decree holder, put the decree in execution for realisation of the decretal amount. Sri Sri Nath Gupta, the Plaintiff in the suit giving rise to the present second appeal, stated that the decree in the suit was collusive and fraudulent and was not binding on him and the Defendants No. 3 to 7. 360-00 Sri Sri Nath Gupta, the decree holder, put the decree in execution for realisation of the decretal amount. Sri Sri Nath Gupta, the Plaintiff in the suit giving rise to the present second appeal, stated that the decree in the suit was collusive and fraudulent and was not binding on him and the Defendants No. 3 to 7. Sri Pashupati Nath Gupta and Defendants No. 3 to 7 served a notice, subsequent to the aforesaid compromise decree, upon the Defendant No. 1 on 26-12-1965 demanding their shares of rent in respect of the house in dispute till 16-11-1965 and thereafter full rent to Pashupati Nath Gupta as a result of the aforesaid compromise. The notice was not complied with and the Defendant No. 1 falsely set up a claim proclaiming himself to be the owner of the house in suit describing himself as a leasee only of the Chabutara, over which the house was constructed. Sri Pasbupathi Nath Gupta thereafter served another notice dated 11-4 1966 upon the Defendant no demanding arrears of rent and the costs of the notice and terminating his tenancy on the expiry of 30 days of the service of the notice This notice was served upon the Defendant No. 1 on 12-4-1966 but he failed to comply with the notice and committed wilful default, which led to the filing of the said suit by Sri Pashupati Nath Gupta. Subsequently, Sri Pashupathi Nath Gupta transferred the house in favour of Sita Ram and Ghanshyam through a registered sale deed dated 10-2-1976, who stepped into his shoes and were entitled to the relief claimed by him as they got themselves impleaded in his place. In the suit, different sets of written statement were filed. The written statement filed by Defendant No. 1, inter alia, denied the title of the Plaintiff, Sri Pashupati Nath Gupta. The written statement filed by the Defendant No. 2 supported the case of the Defendants No. 1 The written statement filed on behalf of the Defendants No. 3, 4 and 6 admitted the case of the Plaintiff. The written statement filed on behalf of the Defendants No. 5 and 7 also admitted the case of the Plaintiff. 3. The trial court on the pleadings of the parties framed issues. The written statement filed on behalf of the Defendants No. 5 and 7 also admitted the case of the Plaintiff. 3. The trial court on the pleadings of the parties framed issues. Subsequently only Defendant No. 1 contested the suit and rest of the Defendants did not appear on the date of hearing and the suit proceeded ex parte against rest of the Defendants. 4. The trial court proceeded with the case under Order XVII Rule 3, Code of Civil Procedure, and decreed the suit of the Plaintiff. Against this decree of the trial court, an appeal was preferred, which was also dismissed on merits. 5. The present second appeal involves for determination the questions, as have been stated above, and, for appreciating the submissions of the learned Counsel for the parties, it is pertinent to mention the order as contained in the order sheets of the trial court for certain dates, which are extracted below: 30-10-1985: Called on Both the parties with their counsel present. 340-C application by the Defendant to recall the order dated 10-10-85, 341-C application by Plaintiff again 340-C. It was conceded by the learned Counsel for the Plaintiff Shri S.K. Verma that the relief 4-A is actually wrongly incorporated in the relief clause of the plaint. It should have been, incorporated as para 4-A of the plaint. Hence the Plaintiff is directed to amend the plaint as conceded by the Plaintiff's counsel, today. 340-C is disposed of and rejected accordingly. Put up again, Called on Both the parties with their counsel present, 342-A amendment application by the Plaintiff. 344-C objection against 342-A by the Defendant. It appears that 342-A has not been in accordance with the direction of the court order passed today. Hence 342-A is rejected. It was informed by the Plaintiff's counsel that the relief of declaration is necessary and the Plaintiff does not want to delete the same. The records of the case shows that the plaint has not been valued for the relief of declaration as well as court fee has also not been paid for this relief. Learned Counsel of the parties conceded that the valuation of the rent for the relief 4-A may be valued at Rs. 3500/- as mentioned in the sale deed 154-A. Hence the Plaintiff is directed to amend the valuation at Rs. 3500/- for the relief 4A and amend the plaint accordingly today. Learned Counsel of the parties conceded that the valuation of the rent for the relief 4-A may be valued at Rs. 3500/- as mentioned in the sale deed 154-A. Hence the Plaintiff is directed to amend the valuation at Rs. 3500/- for the relief 4A and amend the plaint accordingly today. Order passed on 19-10-85 regarding issue No. 7-A & B is modified accordingly. Put up again. Called on Both the parties with their counsel present. 346-A Amendment application by the Plaintiff. Heard. This amendment application has been moved in compliance of court's order. Hence allowed Amendment be incorporated in the plaint today. Amendment incorporated in the plaint. Rs. 50/- as deficient court fee paid by the Plaintiff, Munsarim to report about the sufficiency of court fee, Put up on 31-10-85 for F.H. 4-12-1985 : Called on. Present--Sri S.K. Verma for Plaintiff Chitharu Defendant himself. 351-D Adjournment application by the Defendant on the personal ground of his counsel Sri Prem Kant Srivastava, Advocate Heard. It appears that Shri Prem Kant Srivastava, Advocate, has withdrawn his engagement in this case vide his application 349-C. It is not alleged that the Defendant can't engage another counsel. The case is pending since 16-4-1968 and is the oldest case of this Court. In my opinion 351-D has been moved only to delay the proceeding of the suit. Hence rejected. Parties to examine their witnesses, if any, today. Statement of PW 1 Sita Ram' recorded. He was not even examined by the Defendant. Hence his cross examination is closed. The Defendant did not apply for adjournment of the case no other witnesses examined by the Plaintiff no witness also produced by the Defendant. Therefore, evidence of the parties is hereby closed. Heard arguments of the Plaintiff's counsel, no argument advanced by the Defendant. Put up at 4 P.M. for judgment. 4-12-85: Called on. present sri S.K. Verma, Advocate, for Plaintiff with Plaintiff. Chitharu Defendant No. 1 himself. Judgment pronounced in open court. Plaintiff's suit decreed with costs. Sd/- 6. Therefore, evidence of the parties is hereby closed. Heard arguments of the Plaintiff's counsel, no argument advanced by the Defendant. Put up at 4 P.M. for judgment. 4-12-85: Called on. present sri S.K. Verma, Advocate, for Plaintiff with Plaintiff. Chitharu Defendant No. 1 himself. Judgment pronounced in open court. Plaintiff's suit decreed with costs. Sd/- 6. For consideration of the question, the provisions of Order XVII Rule 3 Code of Civil Procedure, as amended by the Allahabad High Court, as its applicability is questioned, is as extracted below: (3) Where, in a case to which Rule 2 does not apply, any party to a suit to whom time has been granted 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. 7. According to the order sheet dated 4-12-1985, as extracted above, it is clear that (he Defendant not was present himself in court when the case was taken up and he moved an application, paper No. 351-D, for adjournment of the case on the personal ground of his counsel. The trial court observed that Sri Prem Kant Srivastava, counsel for the Defendant No. 1, had withdrawn his engagement in the case vide application paper No. 349-C. It is not alleged that the Defendant cannot engage another counsel. 8. It is not mentioned that the application, paper No. 349-C was disposed of. The statement in the order dated 4-12-1985 is not correct. In fact, the said application was moved on 31-10-1986 and no order was passed granting leave to the counsel for withdrawing from the case. Therefore, there was no occasion for Defendant No. 1 to state that be was not in a position to engage another counsel. It is the position that unless a counsel who, is appearing, is allowed to withdraw by the court to withdraw from the case, the party cannot be blamed by saying that he has not stated in the application for the adjournment of the case that he is not in a position to engage another counsel and in any case the party need to be given opportunity. The application, paper No. 351-D, moved on 4-12-1985, contained the following prayer: Gujaris hai ki mukdama unwan wala mein aaj tarikh waste sakshya wadi mukarar hai rragar payal ke wakil Shri Prem Kant Advocate ka tablyat eka ek kharab ho gaya hai woh aaj kachari nahi aaye huie hai. Itna jaldi koi dusra wakil waste zirah taiyar nahi ho sakta. Aiyse surat me dahityawai tarikh imroja dusri tarikh zaldi hi farmaya ja kar hakrasi. This application clearly indicates that the adjournment was sought on the ground of illness of the counsel and not on the ground that he had withdrawn from the case, and when the adjournment was not sought on the ground of withdrawal of the counsel for the case, then there was no occasion for stating in the application that he is not in a position to engage another counsel. Thus, the very basis of the order dated 4-12-1985 falls and the ground for rejecting the application paper No. 351-D. which was based on withdrawal of the counsel for respondent No. 1, is non Est. In the same order dated 4-12-1985, the statement is ex-facie not correct. The application, paper No. 351-D. was for the adjournment of the case. Therefore, the reasonings as given in the order dated 4-12-1985 are not correct, and as such the court proceeded on wrong assumption of facts under Order XVII Rule 3, Code of Civil Procedure. 9. Apart from this, a litigant cannot engage another counsel unless the counsel already appearing Is disengaged from the case with the permission of the court, otherwise, a counsel who is engaged during the subsistance of engagement of another counsel may be committing professional misconduct under the rules framed by the Bar Council laying down the standard of professional conduct and etiquette u/s 49(1)(c) of the Advocates Act, 1961. 10. Rule 39 of Chapter II of Part VI of the Bar Council of India Rules, which is extracted below, puts a check on the appearance of another advocate during the subsistence of engagement of an advocate: 39. An Advocate shall not enter appearance in any case in which there is already a vakalat or memo of appearance filed by an Advocate engaged for a party except with his consent ; in case such consent is not produced he shall apply to the court stating reasons why the said consent could not be. An Advocate shall not enter appearance in any case in which there is already a vakalat or memo of appearance filed by an Advocate engaged for a party except with his consent ; in case such consent is not produced he shall apply to the court stating reasons why the said consent could not be. produced and he shall appear only after obtaining the permission of the court. In the present case, no such permission from the counsel, Sri Prem Kant Srivastava, for engaging another counsel was taken by the Defendant No. 1 and, in the facts and circumstances of the case, even there was no occasion for taking such a consent as adjournment was sought on the ground of illness of the counsel. Apart from this, the position under the law is that if the counsel refuses to give such consent, then the advocate so engaged by a party is required to apply to the Court stating the reasons why consent could not be produced and such advocate can appear only with the permission of the Court. Here, it is not the case that any other advocate applied the Court for permission to appear on behalf of the Defendant No. 1. 11. It is relevant to consider whether the provision of Order XVII Rule 3, Code of Civil Procedure, are attracted to the present case or not, as it is the question to be decided. Since the parties were present on 4-12-1985, therefore, it was a case covered by Order XVII Rule 2, and not Rule 3, as amended by the Allahabad High Court, Rule 3 is attracted to a case where Rule 2 does not apply. It is not a case where the Defendant No. 1 was allowed time to produce evidence and he failed to do so. It was also not a case of causing the attendance of witnesses of the Defendant. It is to be seen whether the phrase "fails to perform any other act necessary to the further progress of the suit, for which time has been allowed," as contained in Rule 3, is attracted or not. It was also not a case of causing the attendance of witnesses of the Defendant. It is to be seen whether the phrase "fails to perform any other act necessary to the further progress of the suit, for which time has been allowed," as contained in Rule 3, is attracted or not. In this case, no time was allowed to the Defendant No. 1 for performing any fact necessary to the further progress of the suit as on 4-12-1985 the statement of the Plaintiff was recorded and Defendant No. 1 moved an application for adjournment of the case, which was refused, on wrong assumption, and as such it cannot be said that the Defendant failed to perform any act necessary to the further progress of the suit, for which time has been allowed. 12. In M.S. Khalsa Vs. Chiranji Lal and Others, AIR 1976 All 290 the following observations were made by the Chief Justice presiding over the Bench: I would recommended that the Courts below in their anxiety to dispose of the suit should not readily proceed to decide the suit on the merits under Rule 3 for they have the discretion not to proceed to decide the suit forthwith under that rule. It is only in exceptional cases that this be done in order to penalise a really negligent or cantankerous party. I would leave the matter at that. 13. In the present case, the Defendant No. 1 who moved an application 351-D for adjournment of the case on the personal ground of his counsel, was not allowed time The Court did not take into consideration the personal ground as mentioned in the application while rejecting the application and was swayed away by application, paper No. 349-D, which was for withdrawal from the case and was of earlier date, i.e. 31-10-1985, where upon no order granting leave to withdraw from the case was passed. The situation was such where the above observations extracted from Full Bench case (supra) are clearly attracted and it was in the interest of justice that the Defendant No. 1 should have been allowed an opportunity to enable him to bring his counsel as it cannot be said after going through various orders that the Defendant No. 1 was allowed time for cross examining the Plaintiff. 14. 14. Thus, as per position, as stated above, it was a case where the Court wrongly proceeded under Order XVII Rule 3 CPC and in which act the trial Court was not justified. Further, the Order XVII Rule 3, CPC was not attracted in the background of the present case and the order dated 4-12-1985 was based on incorrect fact that the Defendant did apply for adjournment of the case. The Defendant did apply for adjournment of the case on 4-12-1985 vide application paper No. 351-D and the ground for adjournment was personal ground of illness of his counsel and the trial court instead of taking into consideration the ground on which the adjournment was sought, was swayed away on extraneous consideration that his counsel, Sri Prem Kant Srivastava, had withdrawn from the case when on record there is no such order granting permission to the counsel for withdrawing from the case. It is not a right of a counsel to withdraw from a case only by making an application. The withdrawal is only when the Court grants leave to withdraw 15. In the circumstances, the Courts below failed to consider the relevant aspect of the matter in proper perspective. I am of the view that the proceedings under Order XVII Rule 3, Code of Civil Procedure, against the Defendant No. 1 were inequitous as well as not in accord with the provisions of Order XVII Rule 3, Code of Civil Procedure, the appeal deserves to be allowed and the case to be remanded back to the trial court for deciding it afresh on merits after giving opportunities to the parties according to law. 16. The appeal is accordingly allowed, the judgments and decrees of the appellate court as also the trial court are set aside and the case is remanded back to the trial court for decision afresh in accordance with law. The parties shall bear their own costs.