S. K. Mahajan ( 1 ) WITH the consent of the parties matter has been heard and disposed of finally. ( 2 ). Suit of the plaintiff was dismissed by the Trial Court by order dated 10th july, 1984. On the said date the counsel for the plaintiff was present in court and he submitted to the court that since the plaintiff has not contacted him, he could not take steps for summoning of the witnesses. He, accordingly, requested for an adjournment. The court was, however, of the view that no adjournment could be granted and dismissed the suit for want of instructions and non-prosecution. An application was thereafter filed by the plaintiff under Order 9 Rule 9 of the Code of civil Procedure read with Order 17 Rules 2 and 3. By an order dated 10th July, 1984, the application was dismissed by learned Additional District Judge on the ground that as the suit was dismissed on the ground of non-prosecution, an application under Order 9 Rule 9 of C. P. C. was not maintainable. This order of learned Additional District Judge has now been challenged by way of the present petition. ( 3 ). Learned counsel for the petitioner has relied upon a Full Bench judgment of the Madhya Pradesh High Court reported as Ramarao Marotirao and Others v. Shantibai, 1977 Madhya Pradesh Law Journal 364 to contend that if a suit has been dismissed under Order 17 Rules 2 and 3 in the presence of the parties, the application under Order 9 Rule 9 of C. P. C. was not barred. In the aforesaid judgment, it was held as under :- ( 4 ). Rules 2 and 3 of Order 17 of the Civil Procedure Code are mutually exclusive. The unambiguous and clear words used in Rule 2 show that it appeals to an adjourned bearing where the parties or any of them fail to appear. There is no other requirement for attracting Rule 2. The remaining part of Rule 2 deals only with the manner in which the Court is empowered to dispose of the suit in the situation resulting from default of appearance of all or any of the parties to the suit and the latter part of the rule contains no requirement to be fulfilled for attracting rule 2. The remaining part of Rule 2 deals only with the manner in which the Court is empowered to dispose of the suit in the situation resulting from default of appearance of all or any of the parties to the suit and the latter part of the rule contains no requirement to be fulfilled for attracting rule 2. The scope of Rule 2 being as above it must follow necessary that the scope of Rule 3 which follows immediately thereafter cannot be such as to include within its ambit that which falls within Rule 2. Whenever the question arises as to which rule applies, it is first to be seen whether Rule 2 applies, since on Rule 2 being attracted. Rule 3 would be automatically excluded. It is only when there is no default of appearance of all or any of the parties, question of applying Rule 3 would arise provided the requirements laid down in Rule 3 are fulfilled. Rule 3 presupposes the presence of all the parties and then the failure of the party at whose instance and for whose benefit the case was adjourned on the previous date to perform the act necessary for the further progress of the suit. ( 5 ). If, when a suit is called on for hearing the party s counsel appears and seeks adjournment but the adjournment is refused as he has no instructions it will be no appearance of the party and Rule 2 of Order 17, Civil Procedure Code would be attracted. However, in such a case the defaulting party must show sufficient cause for non-appearance as well as for not fully instructing the counsel If the counsel had sought adjournment because he was instructed by his clients to ask for adjournment only and not to proceed with trial, if adjournment be refused or if the counsel feels a necessity to seek adjournment, so that, he may prepare himself and on his own seeks adjournment, it will be no appearance of the party and Rule 2 of Order 17, Civil Procedure Code alone will be attracted. If when a case is called on for hearing the counsel appears (without making any request for adjournment) merely to inform the Court that he has no instructions, and therefore, would not appear, it will be no appearance of the party and Rule 2 of Order 17, Civil Procedure Code alone will be attracted. If when a case is called on for hearing the counsel appears (without making any request for adjournment) merely to inform the Court that he has no instructions, and therefore, would not appear, it will be no appearance of the party and Rule 2 of Order 17, Civil Procedure Code alone will be attracted. The application under Order 9, civil Procedure Code will lie for setting aside a dismissal of a suit where the plaintiff had not been asked to do something and he did not appear when the case was called on for hearing. To such a case Order 17, Rule 2, Civil Procedure Code will alone be attracted, which will also be the case where the plaintiff was asked to do something which he did not do nor did he appear when the case was called on for hearing. When the defendant had not been asked to so something and he did not appear and the Court decides the suit on the basis of the existing material without or after taking any further evidence on record, Order 9, Rule 13 will apply for setting aside ex-parte decree passed in such a case. Order 17, Rule 2, Civil Procedure code will alone be attracted when the defendant had been asked to do something which he did not do nor appeared when the case was called on for hearing and the Court decided the suit on the existing material without taking any further evidence for the plaintiff, and the defendant can apply under Order 9, Rule 13, Civil Procedure Code for setting aside the ex-parte decree. When the defendant had been asked to do something which he did not do and did not appear when the case was called on for hearing and therefore, on the same day the Court took on record ex-parte evidence produced by the plaintiff the application under order 9, Rule 13 of the Civil Procedure Code will lie and Order 17, Rule 2, Civil procedure Code will alone be attracted. In a case where the defendant had been asked to do something which he did not do nor appeared when the case was called on for hearing and the trial Court adjourned the hearing for recording plaintiff s evidence ex-parte and on the next date after recording plaintiff s ex-parte evidence, passed on ex-parte decree against him, an application under Order 9, rule 13 will be tenable. Order 17, Rule 2 of the Civil Procedure Code in such a case will alone be attracted. ( 6 ). I am in agreement with the view taken by the Madhya Pradesh High Court in the aforesaid case and am of the opinion that the suit, which has been dismissed in the presence of the parties under Order 17 Rule 2, an application under order 9 Rule 9 of the C. P. C. will be maintainable. As held in the aforesaid case, if the counsel appearing for a party informs the Court that he had no instructions in the matter, it will be no appearance of the party and provisions of Rule 2 of Order 17 will be attracted in such a case and an application under Order 9 of the CPC will not be barred. The trial Court has thus clearly erred in holding that the application under Order 9 Rule 9 was not maintainable. I, accordingly, allow this petition, set aside the impugned order dated 10th July, 1984 and restore the suit to its original number. ( 7 ). The parties are. directed to appear before the District Judge on 7th October, 2002. ( 8 ). Trial Court file be sent back immediately.