JUDGMENT A.P. Srivastava, J. - This first appeal from order has been filed against an order of the 2nd Civil Judge, Kanpur rejecting the appellants' application for setting aside a decree under Or. 9, R. 13, C.P.C. 2. The facts leading to the appeal are not disputed. The respondents had filed a suit for dissolution of partnership and accounts. Written statements had been filed and issues had been framed. The hearing of the case started and no less than 21 witnesses were examined on behalf of the plaintiffs till the 23rd of August, 1960. The 22nd witness for the plaintiffs was one Sri Yograj, a Hand Writing Expert. His examination in-chief started on 23-8-1960. The defendants' counsel at that stage of the case made an application that for a more effective cross examination of the witness it was necessary for him to. inspect certain Bahi Khatas of the plaintiffs. It was therefore prayed that the remaining part of the statement of the witness should be recorded after the Bahi Khatas had been examined. The learned Civil Judge permitted the defendant's counsel to inspect the Bahi Khatas on condition that the defendants paid Re. 1 for each Khata that was inspected to the plaintiffs. There were about 200 Khatas which the defendants wanted to inspect. Under the orders of the learned Judge therefore they had to pay 200/- as costs before inspection could be completed. The defendants felt aggrieved with this order .and wanted to move the High Court in revision against it. They therefore moved an application on 1-9-1960 praying that the suit be stayed as they wanted to go up in revision against the order dated 23-8-1960. This application was taken up by the Court on 2nd September, 1960 which was the date fixed for the recording of the remaining portion of the statement of Sri Yograj. Before any order could be passed on this application on 2-9-1960 another application was made by Sri R.N. Srivastava, learned counsel for the defendants. In that application it was prayed that the defendants had an apprehension that they would not get a fair trial from the learned Civil Judge and they wanted to move for a transfer of the case. It was prayed that the hearing of the case be stayed. Both the applications dated 1-9-1960 and 2-9-1960 were, however, rejected on 2-9-1960. In that application it was prayed that the defendants had an apprehension that they would not get a fair trial from the learned Civil Judge and they wanted to move for a transfer of the case. It was prayed that the hearing of the case be stayed. Both the applications dated 1-9-1960 and 2-9-1960 were, however, rejected on 2-9-1960. What happened thereafter is stated by the learned Civil Judge in the English notes as follows :- "The plaintiff is present with his counsel Sri Babu Ram Misra. I have examined Sri Yograj P. W. 22 the Hand Writing Expert. The defendant's counsel Sri R. N. Srivastava was present throughout during the examination-in-chief of the witness. He has left the Court a few minutes after the examination of the witness was over. No one is now present for the defendants. The plaintiff has no more witnesses to produce today. The defendants are also not present. No one is appearing for them. I, therefore, close the evidence of both the parties. The plaintiff's counsel is required to argue the case." Arguments were then heard for the plaintiffs on that very date, and the next day i.e. 3-9-1960 was fixed as the date for delivery of judgment. On that date the defendants again made an application for stay on the ground that they would move an application for transfer. That application was rejected and the judgment was delivered on 3-9-1960. It covered 11 foolscap pages. The learned Civil Judge considered each issue framed, referred to the evidence and to the arguments on behalf of the plaintiffs and decreed the suit. 3. Against the decree so passed the defendants took two steps. They filed an appeal against it. Their appeal is pending in this court but we are not concerned with it at present. They also made an application under Or. 9, R. 13, C.P.C. praying that the ex-parte decree be set aside. That application was opposed on the ground that it was not maintainable. By the order which is subject matter of the present first appeal from order before us the learned Civil Judge rejected the application on the ground that it was not maintainable. He took the view that the suit had been decided in the presence of both the parties on merits, that the decree was not an ex-parte decree and it could not therefore be set aside under Or. He took the view that the suit had been decided in the presence of both the parties on merits, that the decree was not an ex-parte decree and it could not therefore be set aside under Or. 9, R. 13 of the C.P.C. It is contended in support of this appeal that the view taken is erroneous and that the application for setting aside the decree should have been considered on merits. Or. 9, R. 13 of the Code could be attracted only if the decree was an ex-parte decree. It could be an ex-parte decree only if it was passed when the defendants had not appeared in the case on the date fixed for hearing. The question is whether in the circumstances of the case the defendants can successfully contend that on the date on which the suit was heard they had not appeared. 4. Reference will have to be made in this connection to Rules 2 and 3 of Or. 17 of the C.P.C., R. 2 reads :- "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 Or. 9 or make such other order as it thinks fit. Where the evidence, or a sustain Val portion of the evidence, of any party has been already recorded and such party fails to appear on such day,the Court may in its discretion proceed with the case as if such party were present, and may dispose of it on the merits. No party shall be deemed to have failed to appear if he is either present or is represented in Court by an agent or pleader, though engaged only for the purpose of making an application." 5. The second clause of R. 2 and the explanation were added by this Court by a notification published in the U.P. Gazette dated 10-7-1943. 6. R. 3 of Or. The second clause of R. 2 and the explanation were added by this Court by a notification published in the U.P. Gazette dated 10-7-1943. 6. R. 3 of Or. 17 of the C.P.C. as amended by this Court reads :- "Where, in a case to which R. 2 does not apply 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, proceed to decide the suit forthwith." An analysis of R. 2 will show that it has two distinct portions. The first portion will apply if (1) on a date to which the hearing of the suit is adjourned (it is immaterial whether the adjournment is directed by the court suo motu or on the application of any party). (2) the parties or any of them fail to appear. This means that either both the parties must be absent or at least one of them should fail to appear. In either of these contingencies the Court can proceed in one of two ways. It can either dispose of the suit in one of the modes prescribed in Or. 9 or may make such order as it thinks fit. The second course will include a further adjournment of the case conditionally or unconditionally but at least one of the parties being absent the case can be decided on merits. It is, however, important to note that this part of R. 2 will apply only when either one or both the parties fails to appear. If both the parties are present and neither party fails to appear this part of R. 2 will not apply at all. In more cases the occasion to apply the first part of the rule will arise only if the recording of evidence has not been started. But the part can be applied even if evidence has been recorded provided both the parties are absent or the party which is absent is the party other than the one whose evidence had been recorded in part. 7. But the part can be applied even if evidence has been recorded provided both the parties are absent or the party which is absent is the party other than the one whose evidence had been recorded in part. 7. The second part of the rule will, apply if the evidence or a substantial portion of the evidence of any party has already been recorded and on the date to which the hearing of the case is adjourned that particular party whose evidence or a substantial portion of whose evidence has already been recorded fails to appear. In that case the Court has been given an option of treating the absent party to be present and has been empowered to dispose of the case on merits. 8. The words "fails to appear" are used in both the parts of R. 2. The meaning of these words was not very certain and different courts had taken different views as to what was meant by "failing to appear". It had been held in certain cases that a party who was physically present but was unable for some reason to proceed with the case could also be held to have failed to appear. It had also been held that if a counsel representing a party appeared only for making an application e.g. an application for adjournment and stated that he had no further instructions in the case the party whom he represented could not have been held to have appeared. Different opinions had been expressed in other cases and it had been held that if a party was present whether or not he was prepared to go on with the case he could not be held to have failed to appear. It had also been held that if a counsel engaged merely for the purpose of making an application was present, the party whom the counsel represented could also not be held to have failed to appear. To set this controversy at rest this Court added the explanation to the rule in 1943. That explanation made it clear that no party could be deemed to have failed to appear if he was present personally or if he was represented by a counsel even though the counsel had been engaged only for the purpose of making an application. 9. That explanation made it clear that no party could be deemed to have failed to appear if he was present personally or if he was represented by a counsel even though the counsel had been engaged only for the purpose of making an application. 9. It was urged on behalf of the appellants that as the explanation was added along with the second part of R. 2 it must be intended to be applicable to the words "fails to appear" used in that part of the rule only and it should not govern the words "fails to appear" used in the first part of the rule. There is, however, nothing in the explanation itself which can justify the limiting of its operation in this manner. The words it explains are "fails to appear" and if these words are used in both the parts of the rule there is no reason why it should not be deemed to explain the words in both the parts. Simply because the addition of this explanation synchronised with the addition of the second part, it cannot be inferred necessarily that it was intended to apply to the second part alone and not to the first part. We think the words of the explanation are general enough to make it applicable to the words "fails to appear" in both the parts of R. 2 of Or. 17. 10. Another argument that was addressed on behalf of the appellants was that the application contemplated by the explanation was an application for an adjournment or an application about something to be done in connection with the case. Learned counsel argued that if the counsel had been engaged only for the purpose of making an application intimating to the court that a transfer application was going to be made that was not an application contemplated by the explanation and if the counsel had been engaged only for the purpose of making such an application the party represented by him must be held to have failed to appear. We are unable to restrict the meaning of the words "an application" used at the end of the explanation in the manner suggested by the learned counsel. The ordinary natural meaning of "an application" is `any application.' Of course, the application should in some way be connected with the suit. We are unable to restrict the meaning of the words "an application" used at the end of the explanation in the manner suggested by the learned counsel. The ordinary natural meaning of "an application" is `any application.' Of course, the application should in some way be connected with the suit. Whatever may be the nature of the application whether it is for adjournment or for calling a witness, or for filing document, or for inspection of record or praying that the suit be stayed because of an intended application for transfer, if it is an application connected with the suit and the counsel has been engaged for the purpose of making that application the party whom that counsel represented must be held to be present on the date on which the application is made and cannot be held to have "failed to appear" for the purposes of either part of R. 2. 11. The case would essentially be different if the party himself is absent and the counsel engaged by the party without making an application also states that he has no instructions. In such a case the appearance of the counsel for only stating that he has no instructions cannot amount to his appearing for the party and cannot be interpreted as appearance of the party through him Vide Gopal Singh v. Kailash Gir, 1933 A.L.J. 1298. 12. The contention of the appellant that the present case was covered by the first part of R. 2 of Or. 17, C.P.C. because the appellants had failed to appear on 2-9-1960 when the case was taken up by the Civil Judge cannot be accepted for the simple reason that on that date though the appellants themselves were absent their counsel Sri R. N. Srivastava appeared and filed an application praying for the stay of the case on the ground that the appellants wanted to move for a transfer of the suit. An earlier application made a day before for stay on the ground that a revision application was intended to be moved in the High Court was also pressed by the learned counsel. The explanation added to R. 2, therefore, clearly applied and if it applied the defendants could not be held to have failed to appear on the date in question. The first part of R. 2 of Or. 17 was, therefore, not applicable. 13. The explanation added to R. 2, therefore, clearly applied and if it applied the defendants could not be held to have failed to appear on the date in question. The first part of R. 2 of Or. 17 was, therefore, not applicable. 13. The second part could not apply because it would have applied only if the defendant's evidence had been recorded and they had failed to appear on the date fixed. Both the parts of R. 2, therefore, were not applicable if the decree was not passed under that rule it could not be an exparte decree. For the application of R. 3 it was necessary that - (1) the case should not be one to which R. 2 applies (2) time must have been given to one of the parties either to produce evidence to cause the attendance of a witness or to perform any other act necessary for the progress of the suit, and (3) the party to whom such time had been given fails to do what he was directed to do. 14. If it is held that in this case the defendants had been granted time to inspect the plaintiffs Bahi Khata and to prepare for the cross examination of P.W. Yograj but had failed to do that when the case was taken up on the 2nd of September R. 3 applied. The decision of the case must in that case be held to be on merits and not ex-parte. 15. The appellants however, contend that R. 3 did not apply as no time had been given to them to do any particular thing necessary for the progress of the suit. If this is accepted R. 3 of Or. 17 did not apply. 16. Assuming that both RR. 2 and 3 of Or. 17 were not applicable the question is if the Court in the present case can be held to have passed an ex-parte decree as contemplated by Or. 9 of the Code. The provisions of this order can apply only if the defendants can be held to have failed to appear when the case was taken up on the 2nd of September. A person can appear to defend a case either personally or through a duly instructed counsel. If the counsel is present the party whom he is representing will be held to be present through him. A person can appear to defend a case either personally or through a duly instructed counsel. If the counsel is present the party whom he is representing will be held to be present through him. If the counsel wants that his presence should not be treated as that of the party he should withdraw from the case with the permission of the Court or state that he has no instructions. If he does not do either, he takes away the right of his client to contend that he had not appeared on the date. In that case the court will proceed as if the party was present and deal with the case accordingly. If the parties are present and have not failed to appear the decision cannot be ex-parte and must he held to be on merits. 17. In the present case as we have already pointed out when the case was called though the defendants were not themselves present their counsel was there. He pressed two applications both for the stay of the case on different grounds but they were rejected. Their counsel was present when the examination-in-chief of Sri Yograj was completed. He did not state that he had no instructions in the case or that he was withdrawing from the case. He did not even state that he was instructed only to move the applications and not for anything else. What he did was that he just walked out of Court a few minutes after the examination-in-chief of the witness was concluded. In these circumstances we are unable to hold that the defendants had failed to appear or that their counsel did not represent them. By walking out of the Court in the manner in which the learned counsel did he could not force the hands of the Court to grant the request for stay or adjournment which had already been rejected. The decree passed in the circumstances of the present case was therefor not a decree which had been passed when the defendants had failed to appear. It was a decree passed on a date when the defendants were present through a counsel who for certain reasons refused to participate in the proceedings after the examination-in chief of Yograj had been completed. The learned Civil Judge proceeded as if both the parties were present and purported to decide the suit on merits. It was a decree passed on a date when the defendants were present through a counsel who for certain reasons refused to participate in the proceedings after the examination-in chief of Yograj had been completed. The learned Civil Judge proceeded as if both the parties were present and purported to decide the suit on merits. The decree was therefore not an ex-parte decree and could not be set aside under Or. 9, R. 13, C.P.C. The application of the appellants under these rules has in our opinion been rightly held to be net maintainable. 18. It was also urged on behalf of the appellants that in the circumstances, the learned Civil Judge was not justified in closing the evidence of the defendants or in passing a decree. These are, however, not matters which arise for decision in the present appeal. These points can be urged in the appeal that has been filed against the decree itself. We, therefore, express no opinion on these points. 19. The appeal must therefore, fail and is dismissed with costs.