JUDGMENT 1. - This is defendants' first appeal against the judgment and decree passed by the learned Additional District Judge No.3, Jaipur City, Jaipur, decreeing the plaintiff's suit against the present appellants for a sum of Rs. 44,499.75. 2. Plaintiff-respondent Bank filed a civil suit for recovery of a sum of Rs. 40499.76 with interest, with the allegation that the appellants submitted an application in the bank for giving the facility of post and pre-shipment for Rs.1.50 lacs so that the goods may be sent to foreign countries and ultimately, the facility was provided on certain terms and conditions. As a result of the agreement, some over-drafts were given to the appellant on different dates. The defendant was unable to pay the amount and therefore, the suit was filed on 8.7.1986. The defendant contested the suit on various grounds. On the basis of the allegations mentioned in the plaint and the written statement, the following issues were framed on 3.3.1987: " 1- D;k ,l0ih0 nqlkn 'kk[kk izcU/kd ,oa fizafliy vkfQlj gksus ds ukrs oknh cSad dh vksj ls okn izLrqr djus dk vf/kdkjh gS\ 2- D;k oknh cSad us fnukad 9-4-80 dks izfroknh QeZ dks 20]000@& :0 vksoj M~kQV dh lqfo/kk iznku dh] ftlds lEcU/k esa izfroknh ua0 2 us izfroknh ua0 1 ds ekfyd ds :i esa okn i= ds iSjk&4 of.kZrkuqlkj izys[k fu"ikfnr fd, rFkk mlesa mYysf[kr C;kt nsus dk bdjkj fd;k\ 3- D;k oknh cSad us 28-4-80 dks izfr0 QeZ dks 10]000@& :0 vksoj M~kQV dh lqfo/kk iznku dh ftlds lEcU/k esa izfr0 ua0 2 us izfroknh QeZ dh vksj ls 1-5-80 dks okn i= ds in la[;k&5 esa of.kZrkuqlkj izys[k fu"ikfnr fd;s rFkk mlesa mYysf[kr C;kt nsus dk bdjkj fd;k\ 4- D;k oknh cSad us okn i= ds in la[;k&6 ds vuqlkj izfroknh QeZ dh vksj ls 30]000@& :0 dk vfxze Hkqxrku fd;k\ 5- D;k oknh cSad izfroknhx.k ls e; C;kt 40499-76 iSls ikus dk vf/kdkjh gS\ 6- D;k izfr0 fons'kksa esa Mwch jde e; C;kt oknh cSad ls ikus dk vf/kdkjh gS\ 7- D;k izfroknhx.k fo'ks"k gtkZ ikus dk vf/kdkjh gS\ 8- vuqrks"kA " 3. Shri O.P. 'arashar was examined on 20.7.1988 as PW-1 on behalf of the plaintiff who produced a number of documents. The, plaintiff closed his evidence. Shri O.P. 'arashar was examined on 20.7.1988 as PW-1 on behalf of the plaintiff who produced a number of documents. The, plaintiff closed his evidence. The case was fixed for defendant's evidence on 29th August, 1988 and again on 8.3.1989 when it was mentioned that last opportunity was being given to the defendant to produce his witness and the case was fixed for 29.3.1989. On 29.3.1989, it was prayed that the witness was ill and the case was again adjourned for 11.4.1989 on which date, the counsel for the defendant submitted that he had no instructions and therefore, no evidence could be recorded on behalf of the defendant, and the evidence of the defendant was closed. Arguments of the learned counsel for the plaintiff were heard and the case was fixed for judgment on 12.4.1989. On 12.4.1989, the judgment was pronounced and the suit was decreed. On 12.4.1989, an application was filed under Order 9 Rule 7 CPC stating therein that the case was fixed for defendant's evidence on 11.4.1989 but on that day, the defendant had to go suddenly to attend funeral of his friend and a well wisher and therefore, the defendant could not inform his counsel. The file of the case was also with the defendant. When the defendant met his counsel on the evening of 11th, he was told by his counsel that he had pleaded no instructions. Under these circumstances, it was prayed that an ex-parte order passed against the defendant be set aside and it is very necessary that the evidence of the defendant should be recorded for the just and proper disposal of the case. The application was supported by an affidavit of Ramdas Jaju. On the back of this application, it has been recorded that Shri D.D. Patodia, Advocate, filed this application along with his Vakalatnama after pronouncement of the judgment and therefore, no order need be passed on this application. 4. Learned counsel for the appellant his very vehemently submitted that the said application was filed before the judgment was pronounced and in that connection, he has also filed an affidavit in this Court, stating that on 12.4.1989 immediately after opening of the Court, the application was filed in the Court before the judgment was pronounced. 4. Learned counsel for the appellant his very vehemently submitted that the said application was filed before the judgment was pronounced and in that connection, he has also filed an affidavit in this Court, stating that on 12.4.1989 immediately after opening of the Court, the application was filed in the Court before the judgment was pronounced. The respondent while filing reply to the said petition has controverted this fact and has submitted that the application was filed only after the pronouncement of the order. It has further been submitted by learned counsel for the respondent that affidavit of Shri D.D. Patodia, Advocate, has not been filed in support of the assertion. 5. Learned counsel for the appellant has very vehemently submitted that the Court could not have proceed to hear arguments on 11.4.1989 itself. The Court could, at the most, have passed an ex-parte order on 11.4.1989 and fix the case for further proceedings on some future date. He has also urged that the principles of natural justice have been violated. The fundamental of the principles of natural justice is that the party should be given full opportunity of hearing including for leading evidence and since the defendant had shown good cause for his non appearance on 11.4.1989 and since he had to go suddenly to attend the funeral, he could not attend the court nor inform his counsel and therefore, the counsel pleaded no instructions. In this connection, he has placed reliance on Subh Machinery Corporation Pvt. Ltd. Bombay v. Pesticides India, Udaipur, 1986 RLW 327 wherein his lordship has also considered the effect of amendment of 1976 made in the Code of Civil Procedure and has held that before the amendment, Order 17 Rule 3 CPC did not make any distinction in the absence or presence of the party on the adjourned hearing and could proceed with the case forthwith, if the party had defaulted in carrying out the purpose for which the adjournment had been granted to it but after the amendment, the position is quite different and the court can proceed under Order 17 Rule 3 CPC only if the parties are present but if the parties or anyone of them is absent, the court has no option but to act under Order 17 Rule 2 CPC. It has further been observed by his lordship that if a party is absent and his advocate pleads no instructions, the court has no option but to proceed under Order 17 Rule 2 C.P.C. 6. My attention was also drawn to Smt. Shantabai v. Chokhelal, AIR 1976 MP 21 (FB) wherein it has been held that Rule 2 of Order 17 CPC expressly deals with the procedure to be followed by the court where the parties or anyone of them fails to appear on any date to which the hearing of the suit is adjourned. Under this rule, the court has the discretion, either to dispose of the suit in one of the modes directed in that behalf or by Order 9 CPC or to make such other order as it thinks fit. The expression or make such order as it thinks fit in the said rule is wide enough to include an order disposing of the case under Rule 3 Order 17 CPC. It is therefore clear that where the case falls within the purview of Rule 3 Order 17 CPC, the court, in the absence of the party concerned, is not bound to dispose of the suit in one of the modes directed in that behalf by Order 9 CPC but has the discretion to decide the suit on the material before it. 7. My attention. was also drawn to Sangram Singh v. Election Tribunal, Kota, AIR 1955 SC 425 , wherein it has been observed that if the defendant does not appear at the adjourned hearing, Order 17 Rule 2 CPC applies and the court s given the widest possible discreti on either to dispose of the suit in one of the modes directed in that behalf by Order 9 CPC or make such other order as it thinks fit. The court has a discretion which it must exercise. Its hands are not tied by the so called ex-parte order and if, it thinks they are tied by Order 9 Rule 7 CPC, then it is not exercising the discretion which the law says it should and in a given case, interference may be called for. 8. The court has a discretion which it must exercise. Its hands are not tied by the so called ex-parte order and if, it thinks they are tied by Order 9 Rule 7 CPC, then it is not exercising the discretion which the law says it should and in a given case, interference may be called for. 8. A reference was also made to Prakash Chander Manchanda and another v. Smt. Janki Manchanda, AIR 1987 SC 42 , wherein their lordships, reversion the decision of the Delhi High Court, observed that if on the date fixed, one of the parties to the suit remains absent and for that period, no evidence has been recorded up to that date, the court has no option but to proceed to dispose of the matter in accordance with Order 17 Rule 2 C.P.C. in any of the modes prescribed under Order 9 C.P.C. After the amendment in 1976 in the Civil Procedure Code, where a party is absent, the only course is as mentioned in Order 17 Rule 3(b) C.P.C. to proceed with under Rule 2 CPC. Therefore, in absence of the defendant, the court has no option but to proceed under Rule 2. Similarly, the language of Rule 2 as it now stands, also clearly lays down that if any of the parties fails to appear, the Court has to proceed to dispose of the suit in one of the modes directed under Order 9 C.P.C. The explanation to Rule 9 CPC gives a discretion to the court to proceed under Rule 3 CPC 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 its evidence. It has further been observed that the court cannot proceed to dispose of the suit on merits and if it proceeds to dispose of the suit in any of the modes provided under Order 9 CPC, the defendant can subsequently file an application under Order 9 Rule 13 CPC for setting aside the ex-parte decree. 9. I have given my thoughtful consideration to the whole matter and have considered the various submissions made at the bar, and also the authorities cited before me. 10. 9. I have given my thoughtful consideration to the whole matter and have considered the various submissions made at the bar, and also the authorities cited before me. 10. As has been mentioned above, the plaintiff closed its evidence on 20.7.1988, and thereafter the case was fixed for defendant's evidence on 29.8.88, but since the witness was reported to be ill, the case was adjourned for 14.9.1988 when the employees were on strike and therefore, the case was fixed for 8.3.1989 and on that day, the last opportunity was granted and the case was fixed for 293.1989. On that day, the witness was ill and a certificate of the doctor was also produced and therefore, the case was fixed for 11.4.1989. On 11.4.1989, neither the defendant was present nor his witness was present. Learned counsel for the defendants submitted that he had no instructions and therefore, the evidence of the defendants was closed and the arguments were also heard on that very day, which could not and should not have been done. Since the defendants had led no evidence, whatsoever, therefore, Explanation to Order 17(2) CPC will not come into play and at the most, the trial court should have recorded an ex-parte order on 11.4.1989 and fixed some other date for hearing the arguments of the parties. On that day, it was for the defendants to take some steps for setting aside the ex-parte-order but as it appears, arguments from the plaintiff's side were heard on 11.4.1989 itself and the case was fixed for pronouncement of judgment on 12.4.1989 on which date, an application was filed on behalf of the defendants to recall the order of ex-parte, which was passed on 11.4.1989. The parties are not in agreement as to when this application was filed, either before the judgment was pronounced or after the judgment had been pronounced. Be that as it may, the fact remains that the order dated 11.4.1989 was not recalled and the suit stands decreed. Even after the amendment in the CPC made in 1976, the Court should have proceeded under Order 9 CPC or it could make such other order as it thinks fit which gives wide power to the court. The suit had been filed on 18.9.1982 and the plaintiff's evidence was closed on 20.7.1988 i.e. nearly after six years. Even after the amendment in the CPC made in 1976, the Court should have proceeded under Order 9 CPC or it could make such other order as it thinks fit which gives wide power to the court. The suit had been filed on 18.9.1982 and the plaintiff's evidence was closed on 20.7.1988 i.e. nearly after six years. The evidence of the defendants could not be recorded on four dates till 11.4.1989 for which require that ample opportunity should be given to the parties to nearly their cases. The fundamental principle of natural justice is that a party should be given sufficient opportunity to lead evidence and as has been. observed by their Lordships of the Supreme Court in Prakash Chandra's case (supra) as also by this court in Subh Machinery's case (Supra) the trial court should not have proceeded to decide the case on merits but could have disposed of the suit in one of the modes directed in that behalf by Order 9 CPC. 11. In the result, this appeal is allowed, the judgment and decree dated 12.4.1989 passed by the learned Additional Distt. Judge No. 3, Jaipur City, Jaipur, are set aside and the trial court is directed to proceed with the case in accordance with law. The defendants are directed to produce their evidence in the court of Addl. Distt. Judge 'No. 3, Jaipur City, Jaipur, on 22.8.1991. Record of the case may be sent immediately.Appeal Allowed. *******