P. Subramonian Poti, J.
1. Order 17,Rule 2 and Order 17, Rule 3 of the Civil P. C. as they stand after the Civil P. C, Amendment Act, 104 of 1976 are materially different from the corresponding provisions as they stood prior to the amendment. Order 17, Rule3 contemplated a judgment on the merits. But a judgment does not become a judgment on the merits falling under Order 17, Rule 3 merely because the judgment purports to be on the merits. The court may have, in the judgment discussed the issues in the ones, considered the evidence and decided the case on the merits. But nevertheless it will not be a disposal under Order 17, Rule 3 if the prerequisite for application of the rule is not satisfied. The party to whom time has been granted must be in default. If the case comes up not after grant of such time to the party, Order 17. Rule 3 will have no application The disposal will then be under Order 17, Rule 2 though it purports to be one on the merits. In such a case a defendant notwithstanding the purported disposal on the merits could seek to reopen the decreeby an application under Order 9, Rule 13 of the C. P. C.
2. After the amendment in 1976, Order 17, Rule 2 stands with an explanation added to it. That explanation reads:
'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.'
Order 17, Rule 3 also is amended. Prior to the amendment the court, notwithstanding the default of party, was entitled to proceed with the suit. But after the amendment it could decide to proceed with the suit under the rule only if the parties are present. If the parties are or any of them is absent the court would proceed only under Rule 2.
3. The above said amendment makes the earlier decisions on the distinction between Order 17, Rule 3 and Order 17 Rule 2 inapplicable after the amendment. The power of the court to proceed to decide the suit under Order 17, Rule 3 is restricted now to cases where the parties are present. If any of the parties happen to be absent the course open is to proceed under Order 17, Rule 2.
4. There is another important change in the provisions which have been noticed. It is not in all cases coming under Rule 2 of Order 17 that the court could proceed to dispose of the suit in the mode prescribed under Order 9 of the C. P. C. If the explanation is attracted the court would proceed to dispose of the suit as it the parties were present. The explanation would be attracted to a case where the evidence or substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which hearing of the suit is adjourned. The court has then a discretion to proceed with the case as if the party was present. It may in its discretion decide to proceed ex parte. In a case where, invoking the explanation, the court proceeds to deal with the case on the merits on finding that the conditions to attract the explanation are present, the disposal is not under Order 9. In such a case there is no question of reopening the decree by resort to Order 9 of C. P. C In other words though the right to proceed to decide on the merits in case of default of appearance of party has been taken out of Order 17, Rule 3, it has been conferred in restricted cases by the explanation to Order 17, Rule 2. Where the court has chosen to proceed to decide on the merits under the explanation Order 9 cannot be invoked.
5. In the view that we have taken here it is not necessary to advert to the decisions in 1963 Ker LT 320, 1963 Ker LT 256, 1964 Ker LT 307 and 1969 Ker LT 402 all of which have been cited by counsel in an attempt to show that merely because the decree purports to be on the merits it need not be taken to be so and Order 17 Rule 2 may be attracted nevertheless.
6. In the case before us a defendant who hotly contested the suit offered himself for examination. He was examined till the rising of the court on 17-1-1979 his examination was to be continued on the 18th. He was unable to appear in court the next day because in the meanwhile he had an attack of Angena Pectoris and was hospitalised at Irinjalakuda. He sent a telegram in the morning to his lawyer, but that was received only in the afternoon. The lawyer submitted to the court that his client was expected and the court waited till lunch but was not prepared to wait further. Then the lawyer reported no instructions. The suit was taken up on 18th for judgment on 20th January and on 20th the suit was decreed.
7. It is a case in which even under Order 17, Rule 3 as it stood prior to the amendment the disposal would not be one on the merits under that rule. That is because the case did not come up on 18-1-1979 on any motion for that purpose by the 1st plaintiff. It is only Order 17, Rule 2 that would have applied, but as the Rules stand amended, in the absence of the 1st defendant disposal could not at any rate be under Order 17, Rule 3. It could only be under Order 17, Rule 2. It could not be under the explanation to that rule because this is a case where the evidence of 1st defendant or substantial portion of it was not in record. The court was not prepared to act upon the statement of the 1st defendant since he was not cross-examined. As such the explanation would not be applicable. If it is a disposal under the main part of Order 17, Rule 2 an application for restoration would stand. The court below has, without going into this, found that only an appeal could be filed and a petition under Order 9, Rule 13 must be held to be not maintainable. That is wrong.
8. We have heard the parties on the merits of the application. The conduct of the 1st defendant cannot be said to benegligent. There is no reason to disbelieve his case. He was vigilant in conducting the case. He had been examined in part the previous day. He was expected by his counsel. He sent a telegram that morning explaining why he could not appear. Unfortunately the telegram reached counsel late. When the court was not inclined to grant adjournment the counsel reported no instructions. In these circumstances the case of the 1st defendant as to the reason for his default should necessarily have been accepted. The result is that the application to set aside the ex parte decree is allowed and suit restored to file. The appeal is thus allowed. The parties shall suffer costs.
9. It is necessary that in the nature of the contentions in the suit and also in view of the fact that these proceedings have delayed an expeditious disposal attention must be given to the suit so that it may be disposed of promptly by posting it day to day as soon as the case comes up for trial.