Judgment :- 1. O.17 R.2 and 0.17 R.3 of the Code of Civil Procedure as they stand after the Civil Procedure Code Amendment Act, 104 of 1976 are materially different from the corresponding provisions as they stood prior to the amendment. 0.17 R.3 contemplated a judgment on the merits. But a judgment does not become a judgment on the merits falling under 0.17 R.3 merely because the judgment purports to be on the merits. The court may have, in the judgment discussed the issues in the case, considered the evidence and decided the case on the merits. But nevertheless it will not be a disposal under 0.17 R.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, 0.17 R.3 will have no application. The disposal will then be under 0.17 R.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 decree by an application under 0.9 R.13 of the CPC. 2. After the amendment in 1976 0.17 R.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 R.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 R.2. 3. The above said amendment makes the earlier decisions on the distinction between 0.17 R.3 and 0.17 R.2 inapplicable after the amendment. The power of the court to proceed to decide the suit under 0.17 R.3 is restricted now to cases where the parties are present. If the parties are or any of them is absent the court would proceed only under R.2 4. The power of the court to proceed to decide the suit under 0.17 R.3 is restricted now to cases where the parties are present. If the parties are or any of them is absent the court would proceed only under R.2 4. There is another important change in the provisions which been noticed. It is not in all cases coming under R.2 of 0.17 that the court could proceed to dispose of the suit in the mode prescribed under 0.9 of the CPC. If the explanation is attracted the court would proceed to dispose of the suit as if 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. If 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 under 0.9. In such a case there is do question of reopening the decree by resort to 0.9 of CPC. 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 0.17 R.3, it has been conferred in restricted cases by the explanation to 0.17 R.2. Where the court has chosen to proceed to decide on the merits under the explanation 0.9 cannot be invoked. 5. In the view that we have taken here it is not necessary to advert to the decisions in 1963 KLT. 320, 1963 KLT. 256,1964 KLT. 307 and 1969 KLT. 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 0.17 R.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 and his examination was to be conducted on the 18th. 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 and his examination was to be conducted on the 18th. He was unable to appear in court the next day because in the meanwhile he had an attack of Angena Poctoris 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 0.17 R.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 0.17 R.2 that would have applied, but as the Rules stand amended, in the absence of the Ist defendant disposal could not at any rate be under 0.17 R.3. It could only be under 0.17 R.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 Ist 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 0.17 R.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 0.9 R.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 be negligent. 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. The conduct of the 1st defendant cannot be said to be negligent. 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. 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 conies up for trial. M.S. Allowed.