ORDER : Sanjay K. Agrawal, J. 1. The substantial questions of law involved, formulated and to be answered in this plaintiff's second appeal are as under: "1. Whether the First Appellate Court is justified in dismissing the suit on merits instead of proceeding under Order 47 (sic 17) Rule 2 of CPC as on the date of evidence the plaintiff was not present and whether the First Appellate Court is justified in upholding that order? 2. Whether both the Courts below are justified in granting counter claim of the defendants on perverse ground?" [For the sake of convenience, parties would be referred hereinafter as per their status shown and ranking in the suit before the trial Court]. 2. The essential facts required to be noticed for adjudication of this second appeal are as under: (2.1) It is the plaintiff's case that suit land was originally held by one Mst. Safura Bai. Said Mst. Safura Bai has executed a Will in favour of plaintiff on 04.04.1995 in respect of suit land for area 0.926 hectares and for remaining part of the land i.e. 0.328 hectare, she has executed a sale deed in favour of the plaintiff on 05.06.1995 for a cash consideration of Rs.12,000/- and since then the plaintiff is in peaceful possession of the suit land but defendants No. 1 & 2, after death of Safura Bai on 5.6.1995, in collusion with the revenue authorities got their name recorded in the revenue records and are trying to interfere in his peaceful possession leading to filing of the suit for declaration of title and permanent injunction. (2.2) Defendants No. 1 & 2 filed their written statement denying the plaint averments and claimed that they being the daughters of Safura Bai succeeded the property and Will is forged and fabricated, as such, they be declared title holders of the suit land; they further pleaded that neither the sale-deed was executed by Safura Bai in favour of plaintiff, nor any will was executed by her in favour of the plaintiff. (2.3) During pendency of the proceeding, defendants No. 1 & 2 filed counter claim stating inter alia that they are owner of the property in question and, therefore, possession should be handed over to them by granting the counter claim. (2.4) The suit was filed before the trial Court on 25.6.1997. (2.3) During pendency of the proceeding, defendants No. 1 & 2 filed counter claim stating inter alia that they are owner of the property in question and, therefore, possession should be handed over to them by granting the counter claim. (2.4) The suit was filed before the trial Court on 25.6.1997. On 24.11.2005 plaintiff's opportunity to lead evidence was closed as on the said date neither plaintiff appeared nor his witness appeared and his counsel sought time, which was declined by the trial Court and the matter was fixed on 30.11.2005 for recording the statements of defendants' witnesses but as defendants do not wish to examine any witness, defendants' opportunity to adducing evidence was also closed and ultimately, on 30.11.2005, the trial Court heard the matter finally and dismissed the suit on merits and counter claim was granted in favour of defendants, which was upheld by the first appellate Court, leading to filing of second appeal in which the substantial questions of law have been formulated, which have been set out in the opening paragraph of the judgment. 3. Mr. Anurag Singh, learned counsel appearing for the appellant would submit that on 24.11.2005, neither plaintiff appeared nor his witnesses appeared and plaintiff's counsel sought time for adducing evidence, which was declined by the trial Court and, therefore, learned trial Court ought to have proceeded under first part of Order 17 Rule 2 of the CPC and ought not to have dismissed the suit on merits under Order 9 Rule 8 of the CPC and the trial Court could not have proceeded the suit on merits as per explanation attached to Order 17 Rule 2 of the CPC as there was no evidence on record to proceed and decide the suit on merits, which has been upheld by the first appellate court erroneously. He further submits that since the defendants led no evidence, therefore, the court below ought not to have decreed the counter claim filed by the defendants as it is a case of no evidence. 4. Mr. Shrivastava, learned counsel appearing for respondents No. 1 & 2/defendants would support the judgment and decree impugned passed by the trial Court and duly upheld by first appellate Court. 5. I have heard learned counsel appearing for the parties, given thoughtful consideration to the submissions made hereinabove and also went through the record available with utmost circumspection. 6. 4. Mr. Shrivastava, learned counsel appearing for respondents No. 1 & 2/defendants would support the judgment and decree impugned passed by the trial Court and duly upheld by first appellate Court. 5. I have heard learned counsel appearing for the parties, given thoughtful consideration to the submissions made hereinabove and also went through the record available with utmost circumspection. 6. In order to consider the plea raised at the Bar with regard to applicability of the provisions contained in Order 17 Rules 2 and 3 of the CPC, it would be appropriate to reproduce the provisions contained in Order 17 Rule 2 and Rule 3 of the CPC which read as under:-- "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 other order as it thinks fit. Explanation.--Where the evidence or 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. 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." 7. A careful perusal of Order 17 Rule 2 of the CPC would show that 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 indicated in Order 9 or the Court is empowered to make such order as it thinks fit. Whereas, under Order 17 Rule 3 of the CPC, 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 granted, 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. 8. The distinction between Order 17 Rule 2 and Rule 3 of the CPC has been considered from time to time by the High Court of Madhya Pradesh also and ultimately, the comparative scope of Rules 2 and 3 of Order 17 of the CPC was referred to the Full Bench consisting of five Judges of that Court. The Full Bench of that Court in the matter of Rama Rao and others Vs. Shantibai and others, AIR 1977 MP 222 has considered the ambit and scope of the two provisions. The conclusion of the Full Bench of the High Court of Madhya Pradesh as per the majority view reads thus:-- "As a result of these conclusions, our answers together with the questions referred to us, are stated as under:-- Questions Answers (1) If, when a suit is called on for hearing, a party’s counsel appears and seeks adjournment but when adjournment is refused he retires saying that he has no instructions whether this will amount to “appearance” of the party whom the counsel represents (a) If the counsel had sought adjournment because he was instructed by his client to ask for an adjournment only, and not to proceed with the trial if adjournment be refused? It will be no appearance of the party and R.2 of O.17 C.P.C. along would be attached. However, in such a case the defaulting party must show ‘sufficient cause’ for non appearance as well as for not fully instructing the counsel. It will be no appearance of the party and R.2 of O.17 C.P.C. along would be attached. However, in such a case the defaulting party must show ‘sufficient cause’ for non appearance as well as for not fully instructing the counsel. (b) 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, will it still amount to appearance of a counsel for the purposes of O.9, R.8, or O.17, R.2 C.P.C. It will be no appearance of the party and R.2 of O.17 C.P.C. along would be attracted. 3. Whether an application under O.9 C.P.C. will lie for setting aside the dismissal of a suit in the following circumstance: (a) The plaintiff had not been asked to do something and he did not appear when the case was called on for hearing Yes, Order 17 R.2 C.P.C. would alone be attracted (b) The plaintiff was asked to do something which he did not do, nor did he appear when the case was called on for hearing. Yes. Order 17 Rule 2 C.P.C. would alone be attracted 4. Whether, in the following situations, the defendant can apply under O.9 R.13 C.P.C. for setting aside an ex parte decree. (a) When the defendant had not been asked to do something and he did not appear and the Court decided the suit on the basis of the existing material without or after taking any further evidence on record. Yes. Order 17 Rule 2 C.P.C. would alone be attracted (b) 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 Yes Order 17 Rule 2 C.P.C. would alone be attracted. (c) When he 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. Yes. Order 17 Rule 2 C.P.C. would alone be attracted. (c) When he 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. Yes. Order 17 Rule 2 C.P.C. would alone be attracted. (d) When he 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 an exparte decree against him. Yes, Order 17 Rule 2 C.P.C. would alone be attracted. 9. It has been clearly held in Rama Rao, AIR 1977 MP 222 (supra) that if the counsel had sought adjournment because he was instructed by his client to ask for an adjournment only, and not to proceed with the trial if adjournment be refused; it will be no appearance of the party and Rule 2 of Order 17 of the CPC alone would be attracted and in such case, the defaulting party must show 'sufficient cause' for non-appearance as well as for not fully instructing his counsel. It has been further held that 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 the provisions contained in Rule 2 of Order 17 of the CPC have to be resorted to. 10. Thereafter, the Supreme Court has an occasion to consider the distinction between Order 17 Rules 2 and 3 of the CPC way back in the year 1986 in the matter of Prakash Chander Manchanda and another Vs. Janki Manchanda, (1986) 4 SCC 699 in which it has been held that where a party is absent, the only course available, as mentioned in Order 17 Rule 3(b) of the CPC, is to proceed under Rule 2 of Order 17 of the CPC, and observed as under:-- "It is clear that in cases where a party is absent the only course as mentioned in Order 17 Rule 3(b) is to proceed under Rule 2. It is therefore clear that in absence of the defendant, the court had no option but to proceed under Rule 2. It is therefore clear that in absence of the defendant, the court had no option but to proceed under Rule 2. Similarly the language of Rule 2 as now stands also clearly lays down that if any one of the parties fails to appear, the Court has to proceed to dispose of the suit in one of the modes directed under Order 9. The explanation to Rule 2 gives a discretion to the court to proceed under Rule 3 even if a party is absent but that discretion is limited only in cases where a party which is absent has led some evidence or has examined substantial part of their evidence. It is therefore clear that if on a date fixed, one of the parties remain absent and for that party no evidence has been examined up to that date the court has no option but to proceed to dispose of the matter in accordance with Order 17 Rule 2 in any one of the modes prescribed under Order 9 of the Code of Civil Procedure. It is therefore clear that after this amendment in Order 17 Rules 2 and 3 of the Code of Civil Procedure there remains no doubt and therefore there is no possibility of any controversy. In this view of the matter it is clear that when in the present case on October 30, 1985 the case was called nobody was present for the defendant. It is also clear that till that date the plaintiff's evidence has been recorded but no evidence for defendant was recorded. The defendant was only to begin on this date or an earlier date when the case was adjourned. It is therefore clear that up to the date i.e. October 30, 1985 when the trial court closed the case of defendant there was no evidence on record on behalf of the defendant. In this view of the matter therefore the explanation to Order 17 Rule 2 was not applicable at all. Apparently when the defendant was absent Order 17 Rule 2 only permitted the court to proceed to dispose of the matter in any one of the modes provided under Order 9." 11. Similar is the proposition laid down in the matter of Mohandas and others Vs. Ghisia Bai and others, AIR 2002 SC 2436 . Apparently when the defendant was absent Order 17 Rule 2 only permitted the court to proceed to dispose of the matter in any one of the modes provided under Order 9." 11. Similar is the proposition laid down in the matter of Mohandas and others Vs. Ghisia Bai and others, AIR 2002 SC 2436 . In the case before the Supreme Court, the case was fixed for evidence, counsel for the plaintiff sought adjournment which was rejected and then the counsel moved an application under Order 17 Rule 1 of the CPC on the ground that the plaintiff is seriously ill and, therefore, the case may be adjourned. The said application was also rejected and the trial Court dismissed the suit under Order 17 Rule 3 of the CPC. Thereafter, an appeal was preferred and the Supreme Court held that the order of dismissal of suit was not passed under Order 17 Rule 3 of the CPC, but it was passed under Order 17 Rule 2 of the CPC, which is apparent from the following observation made in paragraph 3 of the report:-- "3. In the present case what we find is neither the plaintiff-appellant nor his witnesses were present on 7th May, 1994. Therefore, the case has to be dismissed under Order XVII, Rule 2. Even Rule 3 itself provides that if the parties or any of them absent, the Court shall proceed to decide the suit under Order XVII, Rule 2. In view of the said legal position, we are of the view that the view taken by the Court below was erroneous and deserves to be set aside. We, therefore, set aside the judgment under appeal and sent the case back to the trial Court to decide the matter in accordance with law." 12. The Supreme Court again in the matter of B. Janakiramaiah Chetty Vs. A.K. Parthasarthi and others, (2003) 5 SCC 641 considered the scope and ambit of the Explanation to Order 17 Rule 2 of the CPC and held that the Explanation attached to Order 17 Rule 2 is in the nature of a deeming provision and held as under in paragraphs 9 and 10 of the report:-- "9. In Rule 2, the expression used is "make such order as it thinks fit", as an alternative to adopting one of the modes directed in that behalf by Order 9. In Rule 2, the expression used is "make such order as it thinks fit", as an alternative to adopting one of the modes directed in that behalf by Order 9. Under Order 17 Rule 3(b), the 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. 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. 10. 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. 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 for 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. This Court also in the matter of Kishore Jain Vs. Vishambhar Satnami and others, 2010 (3) CGLJ 15 has held that when the case was fixed for recording of the plaintiff's evidence but the plaintiff and his witnesses remained absent, then the trial Court should proceed under Order 17 Rule 2 not under Order 17 Rule 3 of the CPC and observed as under:-- "In the light of the dictum of the Supreme Court in the above referred case and in the light of the judgment of High Court of M.P. in Rama Rao's case (supra) to which I am in respectful agreement and in view of the fact that the plaintiff and his counsel were absent as aforesaid, I have no hesitation to hold that learned trial Court has dismissed the suit under Order 17 Rule 2 of C.P.C. and not under Order 17 Rule 3(a) of C.P.C. and therefore, the order is not appealable ." 14. Now, I shall proceed to examine the facts of the case in the light of the law laid down by Their Lordships of the Supreme Court and the M.P. High Court as well in above mentioned judgment. 15. Now, I shall proceed to examine the facts of the case in the light of the law laid down by Their Lordships of the Supreme Court and the M.P. High Court as well in above mentioned judgment. 15. Reverting to the facts of the present case, it would be appropriate to reproduce the order dated 24.11.2005, which reads thus:-- ^^24-11-2005 oknh }kjk vf/koDrk Jh jger mYyk mi-1 izfroknh }kjk vf/koDrk Jh pUnzoa'kh mi-1 oknh lk{kh vuqifLFkr gSA oknh vf/koDrk us ,d vkosnu varxZr vkns'k 17 fu;e 1 O;-iz-l- ds varxZr is'k dj oknh ls laidZ ugha gksus ds dkj.k lk{; gsrq frfFk fn;s tkus dk fuosnu fd;kA izfroknh vf/koDrk us ?kksj vkifŸk gksuk O;Dr fd;kA izdj.k dk voyksdu dj vkosnu ij fopkj fd;k x;kA izdj.k oknh lk{; gsrq yafcr gSA oknh dks o"kZ 98 ls vkt fnukad rd lk{; gsrq yxHkx 17&18 volj fn;s tk pqds gS fdUrq oknh us lk{; izLrqr djus esa :fp ugha fn[kkbZ gSA vkt oknh dks lk{; is'k djus gsrq vafre volj fn;k x;k FkkA fdUrq oknh lk{kh vkSj Loa; oknh Hkh vuqifLFkr gSA oknh vf/koDrk us oknh ls laidZ ugh gksus ds dkj.k lk{; gsrq frfFk fn;s tkus dk fuosnu fd;k gSA oknh dks lk{; gsrq i;kZIRk volj fn;k tk pqdk gS fdUrq oknh }kjk lk{; is'k djus esa rRijrk ugha fn[kkbZ x;h gSA izdj.k esa oknh dk O;fDrxr :i ls mifLFkr u gksuk mldh mnklhurk dk ifjpk;d gSA vr% ,slh fLFkfr esa oknh vf/koDrk }kjk vkosnu esa mYysf[kr dkj.k leqfpr izrhr ugha gksus ls vkosnu vLohdkj dj oknh ds lk{; dk volj lekIr fd;k tkrk gSA izfroknh us lk{; is'k ugh djuk O;Dr fd;k rnkuqlkj izfroknh lk{; dk volj lekIr fd;k x;kA izdj.k vafre rdZ gsrq 24-11-2005^^ 16. A careful perusal of the aforesaid order sheet dated 24.11.2005 would show that on 24.11.2005 the case was fixed for plaintiff's evidence only but on that day neither plaintiff appeared nor his witnesses were present; and on behalf of the plaintiff, application under Order 17 Rule 1 of the CPC was filed for granting time to lead evidence, which was rejected by the trial Court holding that sufficient opportunity has already been given to the plaintiff and neither plaintiff nor his witnesses were present. Thus, on 24.11.2005, neither the plaintiff nor his witnesses were present and, therefore, the trial Court ought to have proceeded under Order 17 Rule 2 of the CPC as provided under Order 17 Rule 3(b) of the CPC which clearly provides that if the parties are, or any of them is, absent then the Court shall proceed to decide the suit under Order 17 Rule 2 of the CPC also as held by the Supreme Court in Prakash Chander Manchanda, (1986) 4 SCC 699 (supra) and Mohandas, AIR 2002 SC 2436 (supra). The Full Bench of the M.P. High Court in Rama Rao, AIR 1977 MP 222 (supra) has held that when counsel has sought adjournment in absence of the plaintiff and his witnesses, it will be no appearance of the party and Rule 2 of Order 17 of the CPC would alone be attracted. 17. Before proceeding further, it would be appropriate to notice explanation inserted in Order 17 Rule 2 CPC with effect from 1.2.1977. In the objects and reasons for inserting proviso to Order 17 Rule 2 CPC, it has been provided that in view of the obscurity of the present position, a new explanation is being added to the rule to make the position clear by empowering the Court to proceed with a case even in the absence of a party where evidence or a substantial portion of the evidence of such party has been recorded. 18. The question for consideration is whether the trial Court is justified in proceeding with the matter under Order 17 Rule 2 of the CPC and passing the judgment on merits in the present case. 19. It is apparent on the face of the record that explanation attached to Order 17 Rule 2 of the CPC was not applicable in the present case as no evidence was recorded till 24.11.2005 on behalf of the plaintiff and, therefore, the trial Court could have dismissed the suit under Order 9 Rule 8 of the CPC and could not have proceeded to the decide the suit on merits as held by the Supreme Court in Prakash Chander Manchanda and another, (1986) 4 SCC 699 (supra). Thus, in light of principle of law laid down in the aforecited cases (supra), no discretion is required to be exercised by the trial Court to proceed with the trial and decide the same on merits if no evidence on behalf of the party has been recorded; and the plaintiff has failed to appear on the adjourned date of hearing, therefore, the trial Court is unjustified in proceeding with the suit and deciding the same on merits, it ought to have dismissed the suit under Order 9 Rule 8 of the CPC, which has erroneously been affirmed by the first appellate Court and, therefore, judgment and decree passed by the trial Court as upheld by the first appellate Court is hereby set aside. Substantial question of Law No. 1 is answered accordingly. Answer to second substantial question of law 20. Defendants' No. 1 & 2 counter claim seeking decree for possession has been granted by the trial Court and upheld by the first appellate Court. On 24.11.2005, when the trial Court closed the evidence of plaintiff and his witnesses, defendants No. 1 & 2 took calculated chance and decided not to lead evidence and conveniently declared that they do not wish to lead evidence, and the same has been found favour by both the courts below by decreeing the counter claim without there being any piece of evidence on record. 21. It is not in dispute that the counter claim has a force of suit filed by one of the defendants. In the matter of Aloys Wobben and another Vs. Yogesh Mehra & others, (2014) 15 SCC 360 , a counter claim has been defined by the Supreme Court holding that it has to be treated as plaint. Relevant paragraph of the report states as under:-- "25. A "counter claim" for all intents and purposes, must be understood as a suit filed by one who is impleaded as a defendant. A "counter claim" is essentially filed to obstruct the claim raised in a suit. A "counter claim" is tried jointly, with the suit filed by the plaintiff, and has the same effect as a cross-suit. Therefore, for all intents and purposes a "counter claim" is treated as a plaint, and is governed by the rules applicable to plaints. A "counter claim" is essentially filed to obstruct the claim raised in a suit. A "counter claim" is tried jointly, with the suit filed by the plaintiff, and has the same effect as a cross-suit. Therefore, for all intents and purposes a "counter claim" is treated as a plaint, and is governed by the rules applicable to plaints. The court trying a suit, as well as the "counterclaim", has to pronounce its judgment on the prayer(s) made in the suit, and also, those made in the "counter claim" cannot be allowed to proceed where the defendant has already instituted a suit against the plaintiff, on the same cause of action." 22. In view of the aforesaid legal position, burden lies on the defendants to prove their counter claim on the basis of material available on record, they cannot rely on weakness or absence of defence of plaintiff to discharge the onus, if they claim title to property, they must prove their title over the property in question {See : Rangammal Vs. Kuppuswani and another, (2011) 12 SCC 220 }. 23. As it is a case of no evidence on counter-claim, both the courts below could not have granted the counter claim. Accordingly, the counter claim granting decree for possession in favour of the plaintiff is also hereby set aside. 24. In sum & substance, the suit filed by the plaintiff is remitted to the trial Court for hearing and disposal in accordance with law except counter claim. As the suit was instituted on 26.06.1997, the trial Court is directed to conclude the trial expeditiously preferably within a period of three months from the date of receipt of certified copy of this order. 25. Parties are directed to appear before the trial Court on 21st January, 2019. No further notice would be necessary.