Judgment :- 1. This appeal by the plaintiff arises from the ex parte judgment in O. S. No. 4 of 1978. C. M. A. No. 203 of 1982 is the plaintiff's appeal against the order in I. A. No. 616 of 1982 in O. S. No. 4 of 1978 dismissing the application for restoration of the suit which was dismissed for default. The main contention of the appellant is that in the circumstances of this case the suit ought not to have been dismissed for default, but it ought to have been disposed of on the merits. 2. The suit which was instituted in 1978 to restrain the defendants from passing off their merchandise as the goods manufactured by the plaintiff has had a slow progress on account of a series of adjournments sought and obtained by the plaintiff and also an earlier dismissal for default and the subsequent restoration. The case finally stood posted to 20-3-1982 for the defendants' arguments. By then evidence had been fully recorded on both sides and the plaintiff's counsel had argued the case for four days. The defendants' counsel too had already argued for two days. He was expected to continue his arguments on 20-3-1982 at the end of which the plaintiff's counsel could reply if he so chose. However, on that day counsel appeared for the plaintiff not to argue his case, but to represent to the court that counsel who had earlier argued the case on behalf of the plaintiff had relinquished vakalath and that the present counsel was not instructed to argue the case, but only to request for an adjournment. The adjournment was refused and the court passed an ex-parte decree dismissing the suit. That is the decree which is under challenge in this appeal. 3. Counsel for the appellant Shri. T. S. Venkateswara Iyer, relying on the principle stated in Subramania Othuvar v. Manusamiya Pillai, A. I. R.1916 Mad. 897 (1); Chamak Lal v. Mauji, A. I. R.1929 Patna 248; Trappa v. Sidava, A.I.R. 1931 Bom.111; Ninnappa Vtrtappa Yelloor v. Goudappa. (1905) VII Bom. 3. Counsel for the appellant Shri. T. S. Venkateswara Iyer, relying on the principle stated in Subramania Othuvar v. Manusamiya Pillai, A. I. R.1916 Mad. 897 (1); Chamak Lal v. Mauji, A. I. R.1929 Patna 248; Trappa v. Sidava, A.I.R. 1931 Bom.111; Ninnappa Vtrtappa Yelloor v. Goudappa. (1905) VII Bom. Law Reporter 261; State (Delhi Admn.) v. V. C. Shukla A.I.R. 1980 S. C. 1382,1400; and, Goswami Krishna Murailal Sharma v. Dhan Prakash, (1981) 4 S. C. C. 574, submits that even before an Explanation was added to 0.17 R.2, the law was understood in a long line of decisions, notwithstanding certain other decisions taking a divergent view, that in a case where the whole or a substantial portion of the evidence of a party had been already recorded, the absence of that party on the day to which the case was adjourned did not confer a discretion upon the court to dismiss the suit under 0.9 R.B. That this is the correct position, counsel says, is now clarified by the Explanation. 4. The discretion postulated under 0.17 R.2 is a judicial discretion guided by the principle that no harm shall come to a party by the mere absence or failure of his counsel. Where neither party nor his counsel is present, but there is sufficient evidence on record which, if unrebutted, would prove his case and result in a decree, the court must dispose of the suit on merits, and not by the drastic dismissal for default. The Explanation was added by the legislature to make the position clear. 5. R.2 of 0.17 reads: "2 Procedure if parties fail to appear on day fixed,-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. 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." 6. 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." 6. As stated in the decisions cited by Shri. Iyer, where in a case, such as this, there was sufficient evidence to enable the court to dispose of the suit on merits, the court was not justified in dismissing the suit under 0.9 R.8, notwithstanding the absence of the plaintiff or his counsel. Merely because his counsel's presence was required by the court to clarify certain doubts, the court is not empowered to exercise a discretion non judiciously or unreasonably or improperly so as to deprive the plaintiff of a disposal of the case on the merits. The discretion mentioned under R.2 by the words "or make such other order as it thinks fit", is, as clarified by the Explanation, a discretion, where there was sufficient evidence on record, to proceed with the case as if the plaintiff was present, although he was in fact absent. 7. It is true that the plaintiff's counsel did appear, though not to argue the case on behalf of the plaintiff. His mere physical presence solely to seek an adjournment does not oust the application of the principle contained in R.2, for he did not actually represent the plaintiff to argue the case. The plaintiff himself was absent. Whatever was the justification for the absence of the plaintiff or his counsel, the fact is that on the day when the case finally stood posted the entire evidence had been already recorded and the plaintiff's counsel had after four days of arguments completed the plaintiff's case. The presence of the plaintiff or his counsel was therefore no longer necessary for disposal of the case on the merits. 8. The learned judge was totally unjustified in dismissing the suit for default The judgment under appeal is accordingly set aside. The trial court shall restore the suit to its file and dispose of it on the merits on the basis of the evidence already on record. It will be open to the parties or their counsel to submit further arguments if they so desire. The appeal is allowed in the above terms. No costs. 9. The trial court shall restore the suit to its file and dispose of it on the merits on the basis of the evidence already on record. It will be open to the parties or their counsel to submit further arguments if they so desire. The appeal is allowed in the above terms. No costs. 9. In the light of this judgment, no separate order is required in C. M. A. No. 203 of 1982, which is accordingly disposed of. The parties shall appear before the trial court on 29-8-1986 for further directions of that court.