JUDGMENT S.K. Lakhtakia, Member. - This in a revision against the order of the Additional Commissioner, Meerut Division, Meerut dated 25-5-1982 dismissing the appeal filed against the order of the Assistant Collector 1st Class dated 3-10-1978 rejecting the application for restoration of the plaint. 2. The facts of this case in brief are that a suit was brought by plaintiff-revisionist under Section 229-B of U.P. Act No. 1 of 1951 in which the defendant filed written statement. The trial court framed issues and thereafter called upon the parties to produce evidence. The plaintiff produced some oral and documentary evidence. Thereafter 23-9-1973 was fixed for remaining evidence of the plaintiff. On that date the plaintiff did not appear, whereas the defendants were present, the trial court dismissed the suit in default on the same date. Subsequently on 26-9-1978 the plaintiff applied for restoration but the application was rejected vide order dated 3-10-1978 on the ground that no proper cause for non-appearance was shown in the application. The plaintiff went up in appeal before the Additional Commissioner who dismissed the same, hence this revision. 3. Opposite parties are absent in spite of notice. Heard the learned counsel for the revisionist and perused the impugned orders and the record. 4. The counsel for the revisionist contends that since some of the evidence of the plaintiff had already been recorded the suit could not be dismissed under Order 9 Rule 13 C.P.C. and the court could only proceed under Order 17 Rule 2 C.P.C. and therefore, the trial court committed illegality in dismissing the suit, hence it did not exercise its jurisdiction properly and the Additional Commissioner also did not exercise his jurisdiction properly by refusing to interfere in the appeal. 5. I find force in the argument so advanced before me. Order 17 Rule 2 C. P. C. is as follows : - "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 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. An amendment by Allahabad High Court has also been appended to this rule which is as follows :- "Where the evidence, or a substantial portion of the evidence of any party has already been 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. Explanation . - No party shall be deemed to have failed to appear if he is either present or represented in court by agent or pleader, though engaged only for the purpose of making an application." 6. The facts of this case clearly prove that some of the evidence, both documentary and oral, had already been adduced by the plaintiff", hence if they were absent on any given date for producing remaining evidence the court could not dismiss the suit for default. It could go ahead with the suit and could either call upon the defendant to produce their evidence or could decide the suit on merits if the latter had refused to produce evidence. In any of the two cases the suit could not have been dismissed for default and at best a date could have been fixed for receiving evidence of the defendant. In such circumstances the order for dismissal of suit for default passed by the trial court on 23-9-1978 was beyond jurisdiction and cannot be maintained. The learned Additional Commissioner did not examine the case in the right perspective and dismissed the appeal on flimsy grounds. He also did not exercise his jurisdiction properly. Consequently this revision deserve to be allowed and the orders passed by both the courts below deserves to be set aside. 7. The learned Additional Commissioner did not examine the case in the right perspective and dismissed the appeal on flimsy grounds. He also did not exercise his jurisdiction properly. Consequently this revision deserve to be allowed and the orders passed by both the courts below deserves to be set aside. 7. In view of the above discussion, this revision is allowed. The order of the trial court dated 23-9-1978 and 3-10-1978 as well as the orders of the Additional Commissioner dated 25-5-1982 are set aside. The suit is restored and is remanded back to the trial court to proceed with it in accordance with the provisions contained under Order 17 Rule 2 C.P.C.