' NAZIR AHMAD BHATTI, J. -The facts of this first appeal are very simple. Firm Javed Ice Factory, of which the appellant Nasim Javed is a Partner, had obtained loan from the National Bank of Pakistan, respondent herein by hypothecating the Factory alongwith its building and land thereunder on 17-7-1976. The loan was not paid back to the respondent and so it was constrained to file a suit under Order XXXVII, rule 4, C. P. C. Against the Factory in the Court of Special Judge, Banking Companies, N.-W. F. P., Peshawar. The appellant herein had contested the suit but during the proceedings before the learned trial Court, he absented himself off and on but ultimately the evidence of the respondent herein was recorded on 18-7-1983 and the case was posted to 3-8- 1983 for recording evidence of the appellant herein. The case was adjourned by the learned trial Judge 4/5 times at the request of the appellant herein but ultimately on 11-10-1983, the appellant neither produced evidence nor appeared in Court and the learned trial Judge closed his evidence on the said date under Order XVII, rule 3, C. P. C. And decreed the suit of the respondent herein on 12-10-1983 taking into consideration the evidence already on record. The appellant herein presented an application to the learned trial Judge for setting aside the said decree but that application was dismissed on 7-12-1983. Hence the present first appeal.
2. The only point relevant for the purposes of the present appeal is whether the provisions of rule 2 of Order XVII, C. P. C. Or of rule 3 were appeal .Cable. It. Is admitted that on 11-10-1983 neither the appellant herein nor 'his counsel was present before the trial Judge and nor his evidence was available. Mr. Hidayatullah Khan, learned counsel for the appellant, has contended that as the appellant herein was also absent on the date in question, the trial Court should have proceeded under rule 2 of Order XVII, C. P. C. And not under rule 3 thereof. On the contrary, Haji Maqsud Ahmad Khan, learned counsel for the respondent, has contended that sufficient material was available on the record of the trial Court to effectively decide the suit and the trial Court correctly proceeded under rule 3.
3. As such the only question relevant for the purposes of the present appeal is whether, in the circumstances of the case, rule 2 of Order XVII, C. P. C. Was applicable or rule 3, thereof.
4. Both the aforesaid rules have been subject matter of interpretation by the superior Courts since very early times and Mr. Hidayatullah Khan has produced many of those cases before us to establish his point of view. In the case of Prativadi Bhayankaram Pichamma v. Karnisetti S'reeramulu and others (1), it was held that "If the Party fails to appear, rule 2 applies and the Court should not assume that he is guilty of default and apply the stringent provisions of rule 3. Rule 3 applies only to cases where the parties are present and have not satisfied the Court as to the existence of any adequate
(1) AIR 1918 Mad. 143 reason for their not having done what they were directed to do." In the case of Madan Gopal v.
Budhu (I), it was held that "where a party has taken time to produce evidence and on the date fixed for hearing of that evidence he is absent the proper course to follow is to pass an ex parte decree and not an order under Order XVII, rule 3. The words 'make such order as it thinks fit' in Order XVII, rule 2 do not include an order under rule 3. In such a case, even if the Court purports to deliver judgment on merits, the order is to be treated as an ex parte decree, for the setting aside of which the procedure laid down in Order XI, rule 13 is to be followed". In P. Govinda Menon son of Lekshmi Amma and another v. Visalakshi Amma and others (2), it was held that "where time had been granted by the Court to the defendant to produce his evidence and the defendant not only failed to produce any evidence, but both the defendant and his counsel failed to appear in Court and the Court decreed the suit upon consideration of the plaintiff's evidence. Though the judgment purported to be one written on the available evidence in the case as contemplated in Order XVII, rule 3 the disposal was virtually one under Order XVII, rule 2".
5. There are many reported judgments of superior Courts of Pakistan as well. In the case of Abdul Shakoor v. Abdul Rasool (3), it was held that "Rules 2 and 3 of Order XVII, C. P. C., 1908, are not in conflict with each other, nor are they mutually exclusive. The distinction between rule 2 and rule 3 of Order XVII, is that while rule 2 applies to hearings adjourned at the instance of the Court, rule 3 applies to hearings adjourned at the instance of a party, to whom time has been allowed to do some act to further the progress of the suit, but who has defaulted. There is yet another distinction between the rules. Where there are no materials on the record, the proper procedure to be followed would be that laid down in rule 2, but if there are materials on the record, the Court ought to proceed under rule 3. To apply the procedure, therefore, laid down in rule 3 to a case, there must be the presence of both the elements, namely, (1) the adjournment must have been at the instance of a party, and (2) there must be material on the record for the Court to proceed to decide the suit.
The presence of one without the other does not justify the application of rule 3. Even in the case where a special adjournment is granted and the defendant fails to appear in person and his pleader withdraws for want of instructions, it would be a case of double default in so far as there is default of appearance, and the case would fall under Order XVII, rule 2 of the Code." In the case of Fazal Dad v. Ghulam Rasul and others (4), it was held that "plaintiff not only failed to deposit 1/5th of purchase prce in pre-emption suit but also defaulted in appearance on adjourned date of hearing and the suit was dismissed in consequence. Case falls under both rule 2 and rule 3 of Order XVII, C. P. C., but rule 3 being stringent, to be applied only when facts do not admit of application of rule 2." In the case of Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and others (5), the Supreme Court was pleased to observe with regard to the application of rule 3 that "this rule applies to a case where time has been granted to a party at his instance, to produce evidence, or to cause the attendance of witnesses or to perform any other act necessary for the progress of the suit and will not apply unless default has been 'committed
(1) AIR 1932 Lah. 477 (2) AIR 1964 Ker. 99
(3) PLD 1963 (W.P.) Kar. 356 (4) PLD 1965 Azad 3 & K 12
(5) PLD 1971 SC 434 by such party in doing the act for which the time was granted". Again in Shahid Hussain v. Lahore Municipal Corrporation (1), the Supreme Court was pleased to lay down in respect of rule 3, Order XVII, C. P. C. As follows:- "It is clear from the wording of the said rule that on the failure of a party to produce its evidence or to do any other act necessary for the purpose of the case, for which time had been allowed to him, the Court shall proceed to decide the suit forthwith."
' There is yet another case Muhammad Haleem and others v. H. H. Muhammad Naim and others (2), wherein the interpretation of rule 2 and rule 3 of Order XVII, C. P. C. Was involved and the Supreme Court was pleased to observe that "there is a distinction between rules 2 and 3 of Order XVII, and it lies in this that rule 2 would be attracted to a case where the adjournment has been granted generally for one of the purposes mentioned in that rule but where the entire evidence has been recorded and the case is posted only for the hearing of arguments, the more appropriate rule to follow would be rule 3 and not rule 2. The consensus of judicial opinion appears to be in favour of the view that if it is possible for a Court to base a decision on merits upon the materials already brought on the record, it should proceed under rule 3 of Order XVII, and not under rule 2. This appears to be sound on principle".
6. The minute perusal of the aforesaid reported cases would show that there was consensus of opinion that where there was sufficient material available on the record, then the Court should proceed under rule 3 of Order XVII, C. P. C. And decide the suit forthwith on merit, even though the party which was granted adjournment on his own request for taking certain step to bring suit to trial not only failed to do so but also committed A default in appearance. It is admitted that the entire evidence of the respondent herein had already been recorded by the learned trial Court. We are, therefore, of the considered opinion that only rule 3 was applicable to the case due to default in appearance and non-production of evidence by the appellant herein and the learned trial Court correctly proceeded under that rule for finally deciding the suit on 12-10-1983.
7. There is yet another aspect of the case. The suit of the respondent herein had been finally decided on merit by the learned trial Judge because he had proceeded under Order XVII, rule 3, C.
P. C. In such a situation the appellant herein should have filed an appeal against the said decree and should not have moved an application to the trial Court for setting aside the ex parte decree.
The application of the appellant herein before the trial Court for setting aside the decree by treating it as an ex parte decree was also misconceived.
8. Finding no merit in this appeal, we would dismiss it. However, we will make no order as to costs as intricate points of law were involved.
(1)PLD 1981 SC 474 (2) PLD 1969 SC 270 Appeal 'dismissed.