Devinder Gupta ( 1 ) THIS appeal is against the judgment and decree passed on 14. 3. 90 by Shri Prem Kumar, Commercial Sub Judge dismissing the plaintiff/appellant s suit. ( 2 ) ON 6. 3 80, a suit was filed by the plaintiff against one Shri H K. Mody, (now deceased and represented by his L R. s, the respondents), claiming a decree directing the deft. by a mandatory injunction to sign the deed of sale and to get the same registered in favour of the pff. It was alleged that by an agreement in writing dated 22. 10 71, the deft. contracted to sell to the pff. plot No. 21 block k in Hauz Khas, and the house constructed thereon for Rs. 1 80,000%. A sum of Rs. 40. 000. 00 was paid at the time of execution of the deed. The house was subject to mortgage with L. I. C. It was provided in the agreement that on pff. making payment of Rs. 80. 000. 00 to enable the deft. to redeem the house to enable him to transfer the property in pff. s favour, vacant possession would be delivered to the pff. The balance amount of Rs. 60. 000. 00 was payable at the time of registration subject to the deft. procuring Income Tax Clearance Certificate and redeeming the Life Insurance Mortgage. It is further alleged that in addition to Rs. 40,000. 00 paid by the pff. to the deft. at the time of execution of agreement a further sum of Rs. 80. 000. 00 was paid and pff. was put in possession of the house on 25. 11. 71 and thereafter pff. has been residing in the house in part performance of the contract. The deft. failed to procure the Income Tax Clearnce Certificate, despite pff. s request and deft. did not perform his part of the contract. In the meanwhile, with the consent of the deft. the pff. purchased stamp paper worth Rs. 14. 400. 00 and prepared a draft sale deed but the same was not signed by the deft, who had promised to execute the same. Thus the Deft. failed and neglected to execute the sale deed. The pff. thus claimed a decree for mandatory injunction. ( 3 ) THE case was posted for pff. evidence on 5. 9. 89. 14. 400. 00 and prepared a draft sale deed but the same was not signed by the deft, who had promised to execute the same. Thus the Deft. failed and neglected to execute the sale deed. The pff. thus claimed a decree for mandatory injunction. ( 3 ) THE case was posted for pff. evidence on 5. 9. 89. Evidence was not produced and steps were also not taken for summoning any witness. On request case was further adjourned to 26. 9. 89, on which date again an adjournment was sought. Last opportunity to lead evidence was allowed. The case was directed to be posted on 8. 1. 90 on payment of Rs. 75. 00 as costs. On 8. 1. 90 none appeared for the pff. The suit was dismissed in default under 0. 9 R. 8, Civil Procedure Code , which was ultimately restored on 20. 11. 90 subject to payment of Rs, 150. 00 as costs. The case was then posted to 27. 2. 91 for payment of costs and for pffs evidence and and on 143. 91 for deft s. evidence. On 27. 2. 91 pff s evidence was not present. Another adjournment was allowed to adduce evidence subject to payment of Rs. 50. 00 as costs. The case was adjourned to 14. 3. 91 the date already fixed. On 14. 3. 91 the following order was passed by the court: "present: Counsel for the parties. Previous cost not paid. Evidence not produced today. No steps taken. Further adjournment is sought on the ground of sickness of the plaintiff. No medical certificate produced. Request for further adjournment is declined. Judgment pronounced separaty. " ( 4 ) IN the separate judgment recorded by the court, after noticing the fact that issues were framed on 5. 9. 89 and till date no steps had been taken to adduce evidence, the court also proceeded to record pff s conduct in not pursuing the case diligently observing that the suit had been got dismissed in default number of times. It was dismissed in default On 21. 5. 89, 16. 9. 89 and 8. 1. 90 and each time it was restored. It was dismissed in default On 21. 5. 89, 16. 9. 89 and 8. 1. 90 and each time it was restored. It was also observed that since steps had not been taken for producing evidence and even costs had not been paid suit was otherwise liable to be dismissed u/s. 35b C. P. C. The court thereafter observed that since onus of issues 1 to 6 and 9 was on pff. in the absence of any evidence on these issues, pff s suit must fail. Accordingly, the suit was dismissed with costs. ( 5 ) IT is this judgment and decree which is under challenge under appeal. Learned counsel for the appellant has vehemently contended that the trial court was not justified in having invoked Order 17 Rule 3, Civil Procedure Code. and pronouncing judgment forthwith. At the most Rule 2 of Order 17 Civil Procedure Code. could have been invoked and suit could have been disposed of in one of the modes provided in Order 9. Civil Procedure Code. Reliance is placed on Prakash Chander Manchanda vs. Smt. Janki Manchanda A. I. R. 1987 S. C. 42. Contention is that Explanation to R. 2 of 0 17 of the Code would apply to the Case. Till the date of passing of order there was no evidence on behalf of pff. In such a case R. 3 of O. 17 would not apply and applied only when there was some evidence on behalf of pff. and not otherwise. It is further contended that the trial court while noticing that evidence of pff. was not present on that date and even the pff. was not present, it ought not to have taken note of the earlier conduct of the pff. and of the orders of dismissal of suit as it already stood restored. Court could have at the most dismissed the suit under 0. 9 R. 8, C. P. C. after recording a fact that pff. was absent and had failed to adduce evidence. ( 6 ) LEARNED counsel for the respondent on the other hand has vehemently contended that when despite number of opportunities the pff. failed to produce his evidence, there was no option left with the court except to proceed under 0. 17 R. 3 Civil Procedure Code. and dismiss the suit, for want of evidence. It is contended that R. 2 of 0. failed to produce his evidence, there was no option left with the court except to proceed under 0. 17 R. 3 Civil Procedure Code. and dismiss the suit, for want of evidence. It is contended that R. 2 of 0. 17 Civil Procedure Code. would not apply to the facts of the case, since the pff. was present in court through his counsel. It is further urged that since costs had also not been paid, learned trial court was justified in observing the suit was also liable to be dismissed u/s. , 35b Civil Procedure Code. ( 7 ) HAVING considered the submissions made by learned counsel for the parties and having gone through the record, we are of the view that no interference is called for in this case. For coming to this conclusion it is necessary to refer to 0. 17 R. 2 and 0. 17 R. 3 Civil Procedure Code. , which read : "procedure if parties fail to appear on day fixed. 2. Where, on any day to which the hearing of the suit is adjourned, 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. [explanation : Where the evidence or a substantial portion of 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. ] Court may proceed notwithstanding either party fails to produce evidence etc. 3. 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 thesuit, for which 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 21. ( 8 ) ON a bare reading it can be noticed that R. 2 of 0. (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 21. ( 8 ) ON a bare reading it can be noticed that R. 2 of 0. 17 would apply to all cases where the parties or any one of them fails to apear on a day to which the hearing of the suit is adjourned. It is only in case of default in appearance that the Court is entitled to proceed and dispose of the suit by one of the modes directed in that behalf by Order 9 C. P. C. There is no question of applicability of R. 2 of 0. 17 Civil Procedure Code. to the facts of the instant case since on the day, when the suit was disposed of. the pff. was duly represented by a counsel. Appearance contemplated by R. 2 of 0. 17 of the Code need not be in person but may be appearance by a lawyer. The lawyer who had put in appearance was a lawyer engaged by the pff. for the conduct of the suit and had not pleaded no instructions. Presence of the pff. as such will be presumed through his counsel. There is also no question of applicability of R. 8 of 0. 9 or any other provision of 0, 9 of the Code, which would apply only on default of appearance. 0. 9 refers to the cases of default of appearance of parties at the first hearing of the case. Rule 2 of Order 17 however makes the provisions of Order 9 applicable to cases of default at adjourned hearings. Rule 8 of Order 9 would apply where only the deft. appears but pff. does not appear, when the suit is called for hearing. Since, in the instant case, pff. was present through counsel, there was no question of invoking R. 8 of 0. 9 Civil Procedure Code. , as is contended by the learned counsel for the appellant. ( 9 ) THE facts of the case, as revealed above, would suggest that it was a case where number of opportunities had been allowed to the pff. to adduce evidence but he without any justifiable reasons had failed to produce his evidence or even failed to cause the attendance of his witnesses. ( 9 ) THE facts of the case, as revealed above, would suggest that it was a case where number of opportunities had been allowed to the pff. to adduce evidence but he without any justifiable reasons had failed to produce his evidence or even failed to cause the attendance of his witnesses. The court in these circumstances could not proceed further in the matter. Production of evidence by the pff. was an act, which was necessary for the further progress of the suit, for which time had been allowed by the Court. R. 3 (a) of 0 17 C. P C. , says that notwithstanding the default committed by a party to produce his evidence, the court is entitled to decide the suit forthwith in the presence of the parties. On 14,3. 91, the pff. was present through his counsel. Evidence had neither been summoned, nor been produced, for which time had been allowed. It is pertinent to record that though issues had been framed on 24. 4. 1989, neither any list of witnesses was filed, nor steps taken for summoning witnesses. The pff. also remained absent on each date to which suit was posted for his evidence. Thus the court was justified in proceeding under 0. 17 R. 3 Civil Procedure Code. , provisions of which fully apply to the case. The conditions necessary for the applicability of R. 3 of O. 17 are ; Time must have been granted to the party at his instance, to do one or the other of the three things mentioned in the Rule namely (a) to produce evidence ; or (b) to cause the attendance of witneses or (c) to perform any other act necessary for the progress of the suit and the default must have been committed by the party in doing the act for which time had had been granted. The further conditions are that the party must be present or deemed be present and the court must decide the matter forthwith. All conditions fully apply to the facts of the case. The ratio of the decision in Prakash Chander case (supra) would not apply to the facts of the case in hand. ( 10 ) IN Prakash Chander s case (supra), the Supreme Court drew distinction between R. 2 and 3 of 0. 17 Civil Procedure Code. In the said case, it was the deft. The ratio of the decision in Prakash Chander case (supra) would not apply to the facts of the case in hand. ( 10 ) IN Prakash Chander s case (supra), the Supreme Court drew distinction between R. 2 and 3 of 0. 17 Civil Procedure Code. In the said case, it was the deft. who was neither present on the date to which the hearing had been adjourned, nor had taken steps for adducing evidence. Pff. had already adduced his evidence. Deft. had not led any evidence. Defts. evidence was closed by the trial Court which proceeded under 0. 17 R. 3 C. P C. and decreed the suit. The deft. applied under 0. 9 R. 13 of the Code for setting aside, which was dismissed as not maintainable. Review was also dismissed. In this background the Court observed that it was not a case where 0. 17 R. 3 would apply, since it was a case where deft. was absent on the date and had neither produced evidence, nor taken steps for producing his evidence. Even in the absence of the Deft. trial court by virtue of Explanation tor. 2of O. 17 could have proceeded to dispose of the suit by applying R. 3 of 0. 17 provided Deft. had led some evidence. To the case in hand R. 2 of 0. 17 could not have been applied, where all conditions of R. 3 of 0. 17 of the Code were fully satisfied ( 11 ) MERELY referring to the earlier proceedings the trial court only highlighted, the casual manner in which the plaintiff was proceeding with the suit which had been instituted in 1980 and evidence had no been led till 1990. Previous dismissal of the suit for non-appearance or the facts leading to dismisal were not made grounds for applying the rigours of R 3 of 0. 17 Civil Procedure Code.