Judgment :- Defendant in O.S.39 of 1987 on the file of Sub Court, Pathanamthitta is the appellant. The suit stood posted for trial on 2-4-1988 in the special list. Plaintiff and two witnesses were present on that day, but the counsel for the defendant was absent. The court examined the two witnesses in chief-examination. As the counsel for the defendant was absent these witnesses were not cross-examined. The appellant filed I.A.517 of 1988 for adjournment of the case. In the affidavit filed in support of that application the appellant alleged that his counsel was engaged in another court and that he may be given time and prayed that the suit may be adjourned to another date in order to enable him to cross-examine these witnesses. The adjournment was refused and the case was posted to 7-4-88 for disposal. On that day the case was decreed in terms of the plaint. The defendant later filed LA. 978 of 1989 under Order IX Rule 13 CPC to set aside the decree and judgment passed in O.S.39 of 1987. The learned Sub Judge dismissed that application holding that the decree and judgment was passed on merits so a petition under O.IX Rule 13 is not maintainable. The present civil miscellaneous appeal is directed against that order. 2. Under O.XVII, R.2 CPC 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. There is an explanation to this rule. It says that 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. In the instant case the defendant had not adduced any evidence on his side. So the court was not justified in proceeding with the disposal of the case on merits. There is also no case that the case was adjourned and time was granted to the defendant forgiving evidence. If the suit was adjourned at the instance of the defendant then the court would be justified in disposing the suit under R.3 of O.XVII. So the court was not justified in proceeding with the disposal of the case on merits. There is also no case that the case was adjourned and time was granted to the defendant forgiving evidence. If the suit was adjourned at the instance of the defendant then the court would be justified in disposing the suit under R.3 of O.XVII. The case came up for trial for the first time in the special list and the defendant did not effectively participate in' the proceeding. Under that circumstances, the court could have proceeded only under O.IX CPC and the case could not have been considered on merits. So even if the matter was considered on merits it could only be taken as a disposal under O.IX. So it is clear that a petition under O.IX, R.13 is maintainable to set aside the decree and judgment passed in the suit. 3. In PrakashChander v. Janaki Manchanda (AIR 1987 SC 42) the Supreme' Court has explained the legal position and held: 'If on a date fixed, one of the parties to the suit 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 anyone of the modes prescribed under 0.9 of the Civil P.C. After the amendment by Act 104 of 1976 to 0.17, R.2 and 3 in cases where a party is absent only course is as mentioned in 0.17, R.3(b) to proceed under R.2. Therefore, in absence of the defendant, the Court had no option but precede 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" 0.9. 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". 4. The dismissal of the application submitted by the appellant at the threshold stating that the petition was not maintainable is incorrect and the impugned order is unsustainable in law. 4. The dismissal of the application submitted by the appellant at the threshold stating that the petition was not maintainable is incorrect and the impugned order is unsustainable in law. So the impugned order is set aside and the court below is directed to re-consider the application filed by the appellant on merits. The Civil Miscellaneous Appeal is allowed, however, without costs.