Judgment OZA, J. :- This appeal arises as a result of leave granted by this Court against the summary dismissal of the first appeal by the appellant before the High Court of Delhi. The first appeal was filed against an order passed by Sub Judge Ist Class. Delhi, rejecting the review petition filed by the petitioner. The facts necessary for disposal of this case are that in a suit filed against the present appellant in the Court of Sub Judge Ist Class, Delhi, when the matter was fixed for evidence of the defendant as the plaintiffs evidence was over and defendant present appellants evidence was to begin when the case was taken up on 24-1-1985. The order sheet of the Court shows that no D W is present and at the request of the counsel of the defendant the case was adjourned to 7th May, 1985. It is stated that on this date for some reason, the case was transferred to another board and in the transferee Court, the order sheet showed presence of the counsel for parties and it further shows that as the case was received on transfer it was ordered to be put up on 21-8-1985. 2. Learned counsel for the appellant disputed the mention in these proceedings about the presence of the counsel of the defendant-appellant. But in any event as it is not important for the decision of this appeal it is not necessary to go into that question. 3. On 21-8-1985 it appears that there was a holiday and therefore the case was put up before the learned Judge on 22-8-1985 and it was postponed to 30-10-1985 for the evidence of the defendant. On 30-10-1985 the order sheet showed that the counsel for plaintiff was present but no one was present for the defendant. The Court therefore directed the case to be taken up at 1 P.M. At 1 P.M. again the situation remained the same as it is clear from the order sheet. It also shows that none of the witnesses for defendant was also present and therefore the Court passed the order : "the case was called but none has appeared on behalf of the defendant and no D Ws present. The evidence of defendant closed. Now to come up for arguments". The next date fixed was 1-11-1985. It also shows that none of the witnesses for defendant was also present and therefore the Court passed the order : "the case was called but none has appeared on behalf of the defendant and no D Ws present. The evidence of defendant closed. Now to come up for arguments". The next date fixed was 1-11-1985. On this date also nobody appeared for the defendant and counsel for the plaintiff who was present sought adjournment and the case was adjourned to 8-11-1985. On 8-11-1985 arguments of the plaintiffs counsel were heard and as none was present for the defendant the case was fixed for judgment on 11-11-1985. On this date also counsel for the plaintiff was present. Nobody was present for the defendant and order sheet shows that as judgment was not ready it was postponed to 21-11-1985. On 21-11-1985. the judgment was dictated and pronounced and the order sheet also shows that the learned Judge ordered decree to be prepared. It appears that after this the defendant claimed that they came to know about the decree on 18-1-1986 as on that day the plaintiff came to take possession and therefore filed an application under O. 9, R. 13 for setting aside the ex parte decree which was dismissed by the trial Court holding that the case was disposed of not in accordance with O. 17, R. 2 but in accordance with O. 17, R. 3 and therefore the application under O. 9, R. 13 was not maintainable. 4. The appellant-defendant thereafter filed an application for review but that application also was dismissed by the trial Court. Thereafter the first appeal was filed before the High Court of Delhi which was dismissed summarily by the impugned order. 5. Learned counsel for parties submitted at length the controversy that existed before the amendment of Civil P.C. in 1976 about the interpretation of O. 17, R. 2 and O. 17, R. 3. Thereafter the first appeal was filed before the High Court of Delhi which was dismissed summarily by the impugned order. 5. Learned counsel for parties submitted at length the controversy that existed before the amendment of Civil P.C. in 1976 about the interpretation of O. 17, R. 2 and O. 17, R. 3. Apparently there were two views, one was that O. 17, R. 3 could be used for deciding the matter on merits if the party is present but has failed to do what was expected of that party to do and this rule could not be used against a party who was present whereas the other view was that even if a party is absent but has failed to do what was expected of him then it was the discretion of the Court either to proceed under O. 17, R. 2 or under O. 17, R. 3. 6. In some decisions, the High Courts have gone to the extent of saying that even if the trial Court disposes of the matter as if it was disposing it on merits under O. 17, R. 3 still if the party against whom the decision was pronounced was absent it could not be treated to be a disposal in accordance with O. 17, R. 3 and provisions of O. 9 will be available to such a party either for restoration or for setting aside an ex parte decree. Learned counsel placed before us a number of decisions of various High Courts on this aspect of the matter. But in our opinion in view of the amendment to these two rules which have been made by 1976 amendment of the Civil P.C. it is not disputed that to the facts of this case, Civil P.C. as amended will be applicable and therefore it is not necessary for us to (go) into that question. O. 17, R. 2 and R. 3 as they now stand read : "Order 17, Rule 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 O. 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. Order 17 Rule 3 : Court may proceed notwithstanding either party fails to produce evidence, etc. Where 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,- (a) if the parties are present, proceed to decide the suit forthwith, or (b) if the parties are, or any of them is absent, proceed under Rule 2." It is clear that in cases where a party is absent only course is as mentioned in O. 17(3)(b) to proceed under R. 2. It is therefore clear that in absence of the defendant, the Court had no option but to proceed under R. 2. Similarly the language of R. 2 as now stands also clearly lays down that if any one of the parties fails to appear, the Court has to proceed to dispose of the suit in one of the modes directed under O. 9. The explanation to R. 2 gives a discretion to the Court to proceed under R. 3 even if a party is absent but that discretion is limited only in cases where a party which is absent has led some evidence or has examined substantial part of their evidence. It is therefore clear that if on a date fixed, one of the parties remain absent and for that party no evidence has been examined up to that date the Court has no option but to proceed to dispose of the matter in accordance with O. 17 R. 2 in any one of the modes prescribed under O. 9, Civil P.C. It is therefore clear that after this amendment in O. 17 Rr. 2 and 3, Civil P.C. there remains no doubt and therefore there is no possibility of any controversy. 2 and 3, Civil P.C. there remains no doubt and therefore there is no possibility of any controversy. In this view of the matter it is clear that when in the present case on 30-10-1985 when the case was called nobody was present for the defendant. It is also clear that till that date the plaintiffs evidence has been recorded but no evidence for defendant was recorded. The defendant was only to begin on this date or an earlier date when the case was adjourned. It is therefore clear that up to the date i.e. 30-10-1985 when the trial court closed the case of defendant there was no evidence on record on behalf of the defendant. In this view of the matter therefore the explanation to O. 17 R. 2 was not applicable at all. Apparently when the defendant was absent O. 17 R. 2 only permitted the Court to proceed to dispose of the matter in any one of the modes provided under O. 9. 7. It is also clear that O. 17 R. 3 as it stands was not applicable to the facts of this case as admittedly on the date when the evidence of defendant was closed nobody appeared for the defendant. In this view of the matter it could not be disputed that the Court when proceeded to dispose of the suit on merits had committed an error. Unfortunately even on the review application, the learned trial Court went on in the controversy about O. 17, Rr. 2 and 3, which existed before the amendment and rejected the review application and on appeal the High Court also unfortunately dismissed the appeal in limine by one word. 8. The learned counsel for the respondent attempted to contend that in this view of law as it now stands an application under O. 9 R. 13 will be maintainable. However it was suggested that there was also an objection of limitation about the acceptance of that application. It is apparent that the learned trial Court has not considered the application on merits but has only rejected it as not maintainable and that order has been maintained. However it was suggested that there was also an objection of limitation about the acceptance of that application. It is apparent that the learned trial Court has not considered the application on merits but has only rejected it as not maintainable and that order has been maintained. This objection of the learned counsel for the respondent is not necessary for us to go into at this stage as in view of the law discussed above, the order rejecting the application as not maintainable, has to be set aside and it will be open to the learned trial Court to consider the application under O. 9 R. 13 and dispose it of in acordance with that law and while so doing, it may even examine the objections that may be raised by the respondent. 9. The appeal is therefore allowed with costs. The order passed by Honble the High Court and also the trial court rejecting the application of the appellant under O. 9 R. 13 is set aside and it is directed that the learned trial court will proceed to hear and dispose of the application under O. 9 R. 13 filed by the appellant in accordance with law. Appeal allowed.