JUDGMENT Mr. Rakesh Kumar Garg, J.: - Appellant filed the instant suit seeking a decree for possession by way of specific performance of the agreement to sell dated 05.01.2007 with regard to the suit property with consequential relief of permanent injunction restraining the respondent from alienating the suit property to any other person. 2. As per the averments, the defendant-respondent agreed to sell the suit property to the appellant for a consideration of Rs.4.00 lac and received a sum of Rs.3.00 lac and executed the agreement to sell in question in the presence of witnesses. The last date for execution and registration of the sale deed was fixed as 04.12.2007. As per the further averments, the plaintiff-appellant requested the defendant-respondent to execute the sale deed in his favour but the defendant-respondent was putting the matter off on one pretext or the other. Rather he was trying to sell the suit property to some other person even prior to the date fixed. Thus the appellant filed Civil Suit No.381 of 2007 against the defendant-respondent and the Civil Court vide order dated 11.10.2007 granted interim injunction against the defendant-respondent from alienating the suit land to any other person. On 04.12.2007, the appellant was present in the office of Sub Registrar, Pehowa along with balance sale consideration but the respondent failed to turn up. The appellant requested the respondent several times to get the sale deed executed but the defendant-respondent was adamant in refusal. Hence, the necessity arose to file the instant suit. 3. Upon notice, the defendant-respondent appeared and filed written statement raising various preliminary objections. On merits, it was submitted that the defendant-respondent neither entered into any agreement nor any earnest money was received by him from the plaintiff-appellant. It was further averred that the question of selling the house by him does not arise as it was the only house available with his family for living. Rest of the averments were denied and dismissal of the suit was prayed for. 4. No replication was filed. On the basis of the pleadings of the parties, the following issues were framed by the trial Court vide order dated 18.03.2010: 1. Whether the defendant entered into an agreement to sell dated 05.01.2007 with the plaintiff? OPP 2. Whether the plaintiff was and is still ready and willing to perform his part of the contract? OPP 3. On the basis of the pleadings of the parties, the following issues were framed by the trial Court vide order dated 18.03.2010: 1. Whether the defendant entered into an agreement to sell dated 05.01.2007 with the plaintiff? OPP 2. Whether the plaintiff was and is still ready and willing to perform his part of the contract? OPP 3. If issues No.1 and 2 are proved, whether the plaintiff is entitled for relief of possession by way of specific performance of the agreement in question? OPP 4. Whether the suit of plaintiff is not maintainable in the present form? OPD 5. Whether the suit of plaintiff is time barred? OPD 6. Whether the Civil Court has got no jurisdiction to try and entertain the present suit? OPD 7. Whether the plaintiff is estopped by his own act and conduct from filing the present suit? OPD 8. Whether the plaintiff has concealed the true and material facts from the Court? OPD 9. Relief. 5. Thereafter, parties were allowed to lead evidence in support of their respective claims. The plaintiff-appellant did not adduce any evidence despite availing several opportunities and thus, his evidence was closed by order of the Court dated 21.07.2011. 6. No evidence on the part of the defendant-respondent was led as the plaintiff-appellant had failed to lead any evidence in support of his pleadings. 7. The trial Court vide its judgment and decree dated 21.07.2011 dismissed the suit under Order XVII Rule 3 CPC. While dismissing the suit, the trial Court decided issues No.1 to 3 against the plaintiff-appellant observing that he has failed to prove these issues; whereas issues No.4 to 8 were decided against the defendant-respondent being not pressed. 8. The plaintiff-appellant filed an appeal against the aforesaid judgment and decree of the trial Court, which was also dismissed by the first appellate Court vide its judgment and decree dated 30.08.2012. Before the lower appellate Court, it was argued on behalf of the appellant that the trial Court could not proceed under Order XVII Rule 3 CPC as the plaintiff-appellant was not present. According to the learned counsel for the appellant in such a situation, the Court could have proceeded under Order XVII Rule 2 CPC and not under Order XVII Rule 3 CPC. According to the learned counsel for the appellant in such a situation, the Court could have proceeded under Order XVII Rule 2 CPC and not under Order XVII Rule 3 CPC. However, the lower appellate Court after observing that in the presence of appellant’s counsel the suit could not have been dismissed in default and also observing that plaintiff-appellant failed to lead evidence despite grant of many opportunities, rejected the argument as raised and dismissed the first appeal. 9. Still not satisfied, the plaintiff-appellant has filed the instant appeal challenging the judgments and decrees of both the Courts below submitting that following substantial questions of law arise in this appeal for consideration: 1. Whether the case should be decided under Order 17 Rule 2 instead of Order 17 Rule 3 CPC? 2. Whether the ld. Courts below have committed gross error of law while deciding the suit under Order 17 Rule 3 CPC when the appellant had to go abroad at the time of leading evidence? 3. Whether the suit can be decided on that very day when the case was fixed for evidence without giving time to approach the Hon’ble High Court for getting permission to lead evidence? 10. In support of his case, learned counsel for the appellant has placed reliance upon a judgment of Hon’ble the Supreme Court in ‘B. Janakiramaiah Chetty v. A.K. Parthasarthi and others’ 2003 (3) RCR (Civil) 656, and has argued that appellant had to go abroad on the date i.e. 21.07.2012 fixed for leading evidence and the trial Court decided the case on the next date without giving further opportunity to lead evidence, thus, in the absence of any evidence on record, preferring an appeal was really inconsequential as no definite ground of appeal can be pressed into service in such a situation except making generalized challenges. Thus, according to counsel for the appellant the substantial questions of law, as raised, do arise in this appeal and appeal is liable to be accepted. 11. At this stage, provisions of Order XVII Rules 2 and 3 CPC be noticed, which read thus. Thus, according to counsel for the appellant the substantial questions of law, as raised, do arise in this appeal and appeal is liable to be accepted. 11. At this stage, provisions of Order XVII Rules 2 and 3 CPC be noticed, which read thus. “Order XVII Rule 2: Procedure if parties fail to appear on day fixed- 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 order as it thinks fit. Explanation: Where the evidence of 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. Rule 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.” 12. After noticing the aforesaid provisions, Hon’ble the Supreme Court observed as under: “9. The Explanation permit, the Court in its discretion to proceed with a case where 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. As the provision itself shows, discretionary power given to the Court to be exercised in a given circumstances. For application of the provision, the Court has to satisfy itself that (a) substantial portion of the evidence of any party has been already recorded; (b) such party has failed to appear on any day and (c) the day is one to which the hearing of the suit is adjourned. For application of the provision, the Court has to satisfy itself that (a) substantial portion of the evidence of any party has been already recorded; (b) such party has failed to appear on any day and (c) the day is one to which the hearing of the suit is adjourned. Rule 2 permits the Court to adopt any of the modes provided in Order IX or to make such order as he thinks fit when on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear. The Explanation is in the nature of an exception to the general power given under the Rule, conferring discretion on the Court to act under the specified circumstance i.e. where evidence or a substantial portion of evidence of any party has been already recorded and such party fails to appear on the date to which hearing of the suit has been adjourned. If such is the factual situation, the Court may in its discretion deem as if such party was present. Under Order IX Rule 3 the Court may make an order directing that the suit be dismissed when neither party appears when the suit is called on for hearing. There are other provisions for dismissal of the suit contained in Rules 2, 6, and 8. We are primarily concerned with a situation covered by Rule 6. The crucial words in the Explanation are ‘proceed with the case’. Therefore, on the facts it has to be seen in each case as to whether the Explanation was applied by the Court or not. 10. In Rule 2, the expression used is “make such order as it deems fit”, as an alternative to adopting one of the modes directed in that behalf by Order IX. Under Order XVII Rule 3(b), only course open to the Court is to proceed under Rule 2, when a party is absent. Explanation thereto gives a discretion to the Court to proceed under Rule 3 even if a party is absent. But such a course can be adopted only when the absentee party has already led evidence or a substantial part thereof. If the position is not so, the Court has no option but to proceed as provided in Rule 2. Rules 2 and 3 operate in different and distinct sets of circumstances. But such a course can be adopted only when the absentee party has already led evidence or a substantial part thereof. If the position is not so, the Court has no option but to proceed as provided in Rule 2. Rules 2 and 3 operate in different and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally granted and not for any special purpose. On the other hand, Rule 3 operates where the adjournment has been given for one of the purposes mentioned in the Rule. While Rule 2 speaks of disposal of the suit in one of the specified modes. Rule 3 empowers the Court to decide the suit forthwith. The basic distinction between the two Rules. However, is that in the former, any party has failed to appear at the hearing, while in the latter the party though present has committed any one or more of the enumerated defaults. Combined effect of the Explanation to Rule 2 and Rule 3 is that a discretion has been conferred on the Court. The power conferred is permissive and not mandatory. The Explanation is in the nature of a deeming provision, when under given circumstances, the absentee party is deemed to be present. 11. The crucial expression in the Explanation is “where the evidence or a substantial portion of the evidence of a party”. There is a positive purpose in this legislative expression. It obviously means that the evidence on record is sufficient to substantiate the absentee party’s stand and for disposal of the suit. The absentee party is deemed to be present for this obvious purpose. The Court while acting under the Explanation may proceed with the case if that prima facie is the position. The Court has to be satisfied on the facts of each case about this requisite aspect. It would be also imperative for the Court to record its satisfaction in that perspective. It cannot be said that the requirement of substantial portion of the evidence or the evidence having been led or applying the Explanation is without any purpose. If the evidence on record is sufficient for disposal of the suit, there is no need, for adjourning the suit or deferring the decision.” 13. It cannot be said that the requirement of substantial portion of the evidence or the evidence having been led or applying the Explanation is without any purpose. If the evidence on record is sufficient for disposal of the suit, there is no need, for adjourning the suit or deferring the decision.” 13. It may further be noticed that in the instant case, vide order dated 17.12.2010 the trial Court had granted last opportunity for recording evidence on behalf of the plaintiff-appellant and the case was adjourned to 10.02.2011, on which date no witness was present and the trial Court again adjourned the case for 24.03.2011 granting last opportunity and imposing costs of Rs.200. On 24.03.2011, there was no witness of the appellant present and the case was again adjourned to 12.05.2011 for evidence of the plaintiff-appellant and for making payment of costs. On 12.05.2011 also, there was no witness on behalf of the plaintiff-appellant and the case was again adjourned to 21.07.2011 by imposing further costs of Rs.500. Though, learned counsel for the appellant was present but neither costs were paid nor any evidence led. 14. In ‘M/s Shiv Cotex v. Tirgun Auto Plast P. Ltd. and others’ 2011(3) ACJ 728 (SC), Hon’ble the Supreme Court has held that after grant of three adjournments for leading evidence, when no evidence was led, further adjournment cannot be granted. In the aforesaid judgment, Hon’ble the Apex Court further held that it is high time for courts that Courts become sensitive to delays in justice delivery system and realize that the adjournments do not dent the efficacy of judicial process and if this menace is not controlled adequately, the litigant public may lose faith in the system sooner than later. It was further held that the courts, particularly trial Courts, must ensure that on every date of hearing, effective progress takes place in the suit. In the instant case, despite granting a lot of opportunities, the appellant failed to produce any witness on his behalf and in these circumstances he could not be allowed to take benefit of his own wrong raising an argument on the basis of the judgment of Hon’ble the Supreme Court in the case of B. Janakiramaiah Chetty (supra). 15. It is a matter of record that learned counsel for the appellant was present on the date judgment and decree was passed. 15. It is a matter of record that learned counsel for the appellant was present on the date judgment and decree was passed. One fails to understand that when counsel was present, how the suit could be dismissed in default? Thus, the reliance placed by learned counsel for the appellant upon the judgment of Hon’ble the Supreme Court in B. Janakiramaiah Chetty’s case (supra) is of no help to him, as the aforesaid judgment was passed by Hon’ble the Apex Court keeping in view the fact that the defendant-respondent was not present and it was held that it was an ex parte decree. 16. At this stage, it may further be noticed that Rules 2 and 3 of Order XVII CPC operate in different and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally granted and not for any special purpose. On the other hand, Rule 3 operates where the adjournment has been given for one of the purposes mentioned in the Rule. While Rule 2 speaks of disposal of the suit in one of the specified modes, Rule 3 empowers the Court to decide the suit forthwith. The basic distinction between the two Rules, however, is that in the former, any party has failed to appear at the hearing, while in the latter the party though present has committed any one or more of the enumerated defaults. The combined effect of the explanation to Rules 2 and 3 is that a discretion has been conferred on the Court to proceed as it deems fit. The power conferred on the Court is permissive and not mandatory. The explanation is in the nature of deeming provision, when under given circumstances, absentee party is deemed to be present. Moreover, in the instant case, simply because the plaintiff-appellant was not present, it could not be held that the party was not present, as admittedly learned counsel for the plaintiff-appellant was present. The word ‘Party’ as used in Order XVII Rule 2 CPC will surely include ‘Counsel for the party’. In fact, the factual situation in the instant case is entirely different than the case relied upon by the appellant. In that case evidence of defendants was closed and they have moved application for leading additional evidence and defendant was not represented and a decree was passed. In fact, the factual situation in the instant case is entirely different than the case relied upon by the appellant. In that case evidence of defendants was closed and they have moved application for leading additional evidence and defendant was not represented and a decree was passed. Applications were filed under Order IX Rule 13 CPC, which were allowed and in these circumstances Hon’ble the Supreme Court observed, as noticed above. 17. In view thereof, this Court finds no merit in this appeal as the substantial questions of law, as raised, do not arise at all therein. Dismissed. ---------0.B.S.0------------