JUDGMENT K.P. Singh, J. - Aggrieved by the order of the 1st Additional Civil Judge, Agra dated 6-4-1989 whereby the appellants, application for setting aside decree has been rejected, the defendants have approached this Court under Order 43, Rule 1 (a) C.P.C. 2. It appears that the trial court was under the impression that the provisions of Order 17, Rule 3 of the Civil Procedure Code is attracted to the facts of the present case, therefore, the application for setting aside ex parte decree is not maintainable. 3. The trial court has expressed itself in the following word : " izfroknh ds vf/koDrk Jh lrh'k pUnz vxzoky ewyokn esa Hkh izfroknh ds vf/koDrk Fks tks ml frfFk dks mifLFkr Fks rFkk izfroknh ds vf/koDrk dh mifLFkfr izfloknh dks mifLFkfr ekuh tk;sxh vkSj bl izdh.kZ izkFkZuki= esa Hkh Jh vxzoky izfroknh ds vf/koDrk gSa pwWafd fu.kZ; vkns'k&17] fu;e 2 lh0ih0lh0 ds vUrxZr ugha gSa vr% ,0vkbZ0vkj0 1987 lqizhe dksVZ&42 izdk'k pUnz ekupUnz vkfn cuke Jherh tkudh ekupUnzk esa nh xbZ O;oLFkk izLrqr oknh esa ykxw ugha gksrh gSA ewy i=koyh dh vkMZj 'khV ns[kus ls fofnr gS fd izfroknh dh vksj ls ;su dsu izdkjs.k yxHkx 7 ,MtkMesUV fy;s x;s gSaA fnukad 22-01-1986 esa oknh ds lk{kh dk eq[; c;ku vafdr fd;k x;k gS vkSj izfrijh{kk gsrq 31-01-1986 eqdnes esa vfxze frfFk yxk;h xbZ fnukad 22-01-1986 o 31-01-1986 frfFk;ksa esa Hkh izfroknh ds vf/koDrk U;k;ky; esa mifLFkr Fks fdUrq oknh ds lk{kh ls ftjg ugha dh xbZA mijksDr vk/kkj ij izkFkZuk i= vUrxZr vkns'k 9] fu;e 13 lh0ih0lh0 Lohdkj fd;s tkus dk dksbZ i;kZIr vk/kkj ugha gSA " 4. Order XVII, Rule 3 of the Code of Civil Procedure reads as below : "Court may proceed not withstanding 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". 5. The provision of Order XVII, Rule 3 indicates that the aforesaid Rule applied to the case where if the parties are present in court. 5. The provision of Order XVII, Rule 3 indicates that the aforesaid Rule applied to the case where if the parties are present in court. Admittedly, the defendants were not present. Their counsel was accidentally present in court-room, but he had no instructions from his clients, so he could not participate in the proceeding for cross-examination of the plaintiffs witness. In the facts and circumstances of this case, mere presence of the counsel in court-room would not be taken as the presence of the defendants themselves, specially, when the counsel had not been instructed on that day to appear on behalf of the defendants. Moreover, the counsel for the defendants had stated that he had no instructions as his clients had not approached him on that day. In the aforesaid circumstance, mere presence of the counsel in the court-room cannot be treated as presence of the defendants in the court. One of the essential ingredients for the applicability of the provisions of Order XVII, Rule 3 is that the parties must be present when the case was called cut. In this case since the counsel of the defendants was accidentally present in court-room the presiding officer could not infer that the defendants were present. We think that the trial court is not correct in holding that the order sought to be set aside, would be deemed under Order XVII, Rule 3 and, therefore, the application was not maintainable. 6. After hearing learned counsel for the parties and perusing the impugned order, we think that the impugned order cannot be sustained and it deserves to be set aside. We set aside the impugned order dated 6-4-1989 and direct the trial court to redetermine the prayer of the appellants regarding setting aside the ex parte decree. It would be better for the trial court not to indulge in technicalities in setting aside ex parte decree without giving opportunity to the defendants to lead their evidence in the case. The learned counsel for the defendant-appellants states before us that his clients shall cooperate in the progress of the suit and see that unnecessary adjournments are not sought on behalf of the appellants. Therefore, we direct the trial court to decide the suit expeditiously and if possible within three months from the date on which a certified copy of this order is produced before it. 7. Therefore, we direct the trial court to decide the suit expeditiously and if possible within three months from the date on which a certified copy of this order is produced before it. 7. In the result, above noted First Appeal from Order against the order of the trial court dated 6-4-1919 is hereby allowed and the order of the trial court dated 6-4-1989 is set aside and the trial court is directed to proceed with the case expeditiously. 8. There shall be no order as to costs.