JUDGMENT V.K. Gupta, C. J.—Consequent upon the order passed on 25th February, 2005 in CMP No. 332 of 2004, this revision petition has been restored and is taken up for hearing and final disposal today. 2. Vide order dated 5th April, 2002 the Court had directed that the petitioners may file an application for service of the unserved respondents by substituted means. Accordingly, as per office noting dated 12th September, 2002 the service was effected by publication in the daily Newspaper "Amar Ujala" and as per the minutes of the noting dated 30th September, 2002 by the Registrar General, despite said service no one had appeared for the respondents. Since the respondents did not appear despite due service they are being proceeded against ex-parte. 3. What is under challenge in this petition is an order dated 16th January, 2001 passed by the learned District Judge, Kangra at Dharamshala in CMA No. 61 of 2000 by which the learned Court below allowed the application filed by the respondents/plaintiffs for setting aside the earlier order dated 18th March, 2000 passed by the same Court whereby the suit of the respondents/plaintiffs had been dismissed for non-prosecution. While allowing the respondents application vide the aforesaid order dated 16th January, 2001, the Court below accordingly, as a consequence set aside the dismissal order dated 18th March, 2000 and restored the suit in question. In order to appreciate the true contours of the controversy involved in this petition it shall be profitable to take a look at the order dated 18th March, 2000 which reads thus:— "No PF etc., filed. Adjournment is prayed since members of bar are on strike today. Four dates have already been given for plaintiffs evidence, which has not been summoned. Hence the suit of the plaintiff is dismissed for non- prosecution. File, after completion be consigned. Announced." 4. A reading of the impugned order dated 16th January, 2001 suggests that the learned trial Court was debating whether the aforesaid order dated 18th March, 2000 was passed in terms of Order 9 Rule 2 of the Code of Civil Procedure or it was passed under Order 17 Rule 3 of the Code of Civil Procedure. Announced." 4. A reading of the impugned order dated 16th January, 2001 suggests that the learned trial Court was debating whether the aforesaid order dated 18th March, 2000 was passed in terms of Order 9 Rule 2 of the Code of Civil Procedure or it was passed under Order 17 Rule 3 of the Code of Civil Procedure. Rule 2 of Order 9 of the Code of Civil Procedure as it was in existence at the relevant time dealt with the dismissal of a suit where summons would not be served upon a defendant in consequence of plaintiffs failure to pay costs. For ready reference, this rule is reproduced hereinbelow, which reads thus:— "2. Dismissal of suit where summons not served in consequence of plaintiffs failure to pay costs.—Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the Court-fees or postal charges (if any) chargeable for such service, or to present copies of the plaint or concise statements, as required by Rule 9 of Order VII, the Court may make an order that the suit be dismissed: Provided that no such order shall be made if, notwithstanding such failure, the defendant attends in person (or by agent when he is allowed to appear by agent) on the day fixed for him to appear and answer." 5. A bare look at Rule 2 (supra) clearly suggests that it would be applicable only in a situation where a suit is dismissed by the Court on the only ground that on the date fixed in the suit the Court finds that summons could not be served upon the defendant in consequence of a failure of the plaintiff to pay Court fee or postal charges etc. for effecting service of summons upon the defendant, or to present the copies of the plaint etc. etc. A perusal of order dated 18th March, 2000 and the history of the case clearly reveals that in the suit in question the defendant had been served properly and was contesting the suit and the suit was dismissed on 18th March, 2000 only because the plaintiffs had not taken steps for producing their evidence despite four opportunities granted to them for this purpose. In this background, therefore, Order 17 Rule 3 of the Code of Civil Procedure alone could be held applicable because it is under this rule that a Court has the jurisdiction to pass orders if a party to the suit to whom time has been granted fails to produce his evidence or to do any other act mentioned therein. For ready reference Rule 3 of Order 17 is reproduced hereinbelow which reads thus:— "3. Court may proceed notwithstanding either party fails to produce evidence, etc.—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." 6. The stipulation in Rule 3 (supra) that in the event of the party failing to produce evidence the Court may, notwithstanding such default or failure to produce evidence, proceed to decide the suit forthwith. In case of the plaintiffs failure to produce evidence, the act of the Court in dismissing the suit for non-prosecution would, in the facts and circumstances of this case actually amount to the Court deciding the case itself and forthwith. After all, what else the Court do when the plaintiff despite repeated opportunities failed to produce any evidence on his behalf. If there is no evidence produced by the plaintiff the only option left with the Court was to dismiss the suit and that according to my considered opinion would amount to "deciding the suit forthwith". By no stretch of imagination in any event could the order dated 18th March, 2000 be termed or construed as having been passed under Order 9 Rule 2 of the Code of Civil Procedure because Rule 2 (supra) could not at all be held attracted or applicable in the facts and circumstances of this case. 7. For the foregoing reasons, therefore, I hold that the impugned order has been passed by the learned Court below erroneously and in total derogation of law and the same deserves to be set aside. 8. 7. For the foregoing reasons, therefore, I hold that the impugned order has been passed by the learned Court below erroneously and in total derogation of law and the same deserves to be set aside. 8. In the result the revision petition is allowed and the impugned order is set aside with all consequences. No order as to costs. 9. Interim order dated 12th April, 2001 shall stand vacated. Revision allowed. -