Fazl Ali, J.The petitioner brought a suit on the basis of a hand-note alleged to have been executed by the opposite party for a sum of Rs. 237. The opposite party denied the execution of the hand-note and also contended that it did not bear his thumb-impression. On 4th November, 1927, two witnesses were examined on behalf of the plaintiff and the thumb-impression of the defendant was taken on a piece of paper in order that it might be compared with the thumb-impression on the hand-note which was the basis of the suit. The plaintiff was directed to deposit a sum of Rs. 20 to meet the cost of sending the thumb-impressions to the expert for comparison and the plaintiff accordingly deposited the amount. The report which was received from the finger print expert on 22nd December, 1927, was that the thumb-impression on the hand note tallied with the admitted thumb-impression of the defendant. On 6th January, 1928, the petitioner applied for time to call the expert and to summon certain other witnesses and the suit was adjourned to 13th January, 1928, and the Court ordered the petitioner to deposit a sum of Rs. 40 to cover the experts fee and expenses. On 31st January, 1928, which was the next date for the hearing of the case the following order was passed by the Court. " Experts fee not yet deposited. Plaintiff is absent on call. It is 1145 p. m, Plaintiffs Pleader hag also not turned up. Ordered-dismissed for default."

2. On 23rd January, 1928, the plaintiff filed an application for the restoration of the suit and he alleged in his application that being ill he could not attend the Court on 13th January, 1928, and that he had sent one Hira Lal with money to his Pleader but the money could not be deposited because Hia Lal arrived late in Court. The Small Cause Court Judge after hearing the evidence rejected the application of the petitioner on 5th May, 1928. It is against this order that the petitioner has now come up to this Court and obtained a rule.

3. Now, one 6f the questions arising in this case is as to whether having regard to the circumstances of the case the learned trial Court should have proceeded under Order XVII, Rule 2 or O, XVII, Rule 3. The decisions of the various High Courts, as to which of these rules should be applied in circumstances like those of the present case can by no means be easily reconciled. It appears, however, that the, learned Subordinate Judge has proceeded in this case under Order XVII, Rule 2, though he has not expressly referred to that rule in his order of 31st January, 1928. The view that he was competent to act under the rule is supported by a Fall Bench of the Madras High Court as well as certain decisions of the Bombay High Court: see Prativadi Bhayan-karam Pichamma v. Kamisetti Sreeramulu 43 Ind. Cas. 566 : 41 M. 286 : 34 M.L.J. 24 : 23 M.L.T. 1 : (1918) M.W.N. 92 (F.B.), Ningappa Virtappa Yelloor v. Gowdappa 7 B. L.R. 261. Assuming then that the Subordinate Judge was competent to proceed under Order XVII, Rule 2, in the present case and that he did proceed under that rule, he should have kept in view the fact that his powers were much larger under Order XVII, Rule 2 than under Order IX, Rule 8 or even Order IX, Rule 3 and that it was not the only course open to him to dismiss the case for default. Order XVII, Rule 2 runs as follows:

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.

4. It is clear from the language employed in the rule that it is not obligatory on the Court to proceed in each case in the manner directed by Order IX and to dismiss the case for default. Rather the Court should in each case exercise a discretion as to whether it should proceed under Order IX or make some other order. It has been held that the discretion is exercised improperly if the suit is dismissed for default when the plaintiff has, at an earlier hearing, made a definite case which, if uncontradicted, would entitle him to a decree, In the case of Prativadi Bhayavkaram Pichamma v. Kamisetti Sreeramulu 43 lnd. Cas. 566 : 41 M. 286 : 34 M.L.J. 24 : 23 M.L.T. 1 : (1918) M.W.N. 92 (F.B.) Kumaraswami, J., made the following observation:

It will thus be seen that Rule 2 of Order XVII empowers the Court to apply to adjourned hearings the same procedure to be followed in case of failure of the parties to attend at the first hearing. It however expressly empowers the Court instead of proceeding under Order IX to pass such other order as it thinks fit. There is therefore nothing to prevent the Court from adjourning the case to another day if the parties fail to appear and the Court thinks that in the interests of justice it should not dismiss the suit or decree it ex parte. This should be borne in mind as it has been strenuously argued before us on the strength of some of the observations in some of the decisions referred to in the course of argument that the view taken in Chandramathi Ammal v. Nara-yanasami Iyer 5 Iad. Cas. 23 : 33 M. 241 : 19 M.L.J. 760 : 7 M.L.T. 369, is likely to entail great hardship on the defaulting party. Where the Judge, thinks that a defaulting party has proved his case, he is not bound to apply the provisions of o. IX but can adjourn the case to another day in case he fails to appear and I am sure no Judge with any sense of justice would dismiss a just claim which he considers proved simply because a party fails to appear on an adjourned date.

5. Thus in this particular case the facts are that the genuineness of the thumb-impression on the hand-note had been denied by the defendant and the matter being referred to the finger print expert, the report that was submitted by the expert supported the case of the petitioner. The petitioner had deposited the cost of sending the thumb-impression to the expert for comparison as directed by the Court and he had also adduced some evidence in support of his case. These being the circumstances of the case, when the petitioner failed to appear on 13th January, 1928, the trial Court should have. paused to consider whether it was a fit case in which the stringent provisions of Order IX should be applied or whether having regard to the fact that neither party had appeared (I say this because the order-sheet does not show that the defendant appeared on that dale and that the plaintiff had already adduced some evidence) this was a fit case in which the trial Court might have given an adjournment. It appears from the order of the trial Court dismissing the case for default that it did not bring its mind to bear upon this aspect of the case, nor did it realize that it was not obligatory on it to dismiss the case for default. The trial Court might have elected not to dispose of the suit in the manner provided by Order IX and as I have already said, there is nothing in the order passed by the trial Court to suggest that the trial Court considered this aspect of the question. In my opinion, therefore, there was a clear failure on the part of the trial Court to exercise the jurisdiction vested in it of not proceeding under Order IX, in this case and having regard to the hardship of the case, I think it is a fit case for the interference of this Court.

6. I would, therefore, allow this application and set aside the order of the lower Court dismissing the case for default and direct that the Court should proceed to hear and dispose of the suit. The Court should give one more opportunity to the petitioner to summon the expert and to offer such other evidence as he considers necessary to offer in the case. If the plaintiff fails to do so the Court shall proceed to dispose of the case according to law. Having regard, however, to the circumstances of the case, I shall not allow any costs to the petitioner.