L. MOHAPATRA, J. ( 1 ) THIS revision has been filed against the judgment and order dated 27. 11. 1999 passed by the learned Addl. District Judge, Jeypore, confirming the order dated 29. 9. 1997 passed by the learned Civil judge (Senior Division), Jeypore, rejecting the application filed by defendant No. 1 under order 9, Rule 13, Civil Procedure Code (for short, 'cpc' ). ( 2 ) THE petitioner is the defendant No. 1 in Title Suit No. 66 of 1992. The said suit was posted to 6. 4. 1995 for hearing. On the said date a petition was filed for adjournment on the ground of illness of the petitioner and some other grounds. But the same was rejected and the petitioner was examined on that day in part. Thereafter the suit was posted to 10-4-1995 but due to illness of the petitioner he was not able to move till 2-5-199j5. On 3-5-1995 he was informed that the suit was decreed in his absence. Therefore, an application was filed under Order 9, Rule 13, CPC to set aside the ex parte decree passed against him. An objection was filed by the plaintiff to the petition filed under Order 9, Rule 13, CPC denying the allegation of illness. The petitioner examined himself as P. W. 1. In his evidence he stated that on 6. 4. 1995 he had sought for adjournment on the ground of illness but the same was rejected and he was examined in part. Thereafter the suit was posted to 10. 4. 1995 and to subsequent dates on which he could not attend the Court as he was suffering from blood pressure and dysentery. On 24. 4. 1995 his application for grant of adjournment was rejected and the evidence from his side was closed. Thereafter the decree was passed. He has also stated in his evidence that he had got himself examined by a Doctor who advised him to take rest and he had filed 3 medical certificates on each date of hearing of the case. However, the Trial Court rejected the application on the ground that no ex parte decree had been passed against the petitioner and therefore, the application under Order 9, Rule 13, CPC was not maintainable and it was open for the petitioner to file an appeal against the decree passed in the suit. However, the Trial Court rejected the application on the ground that no ex parte decree had been passed against the petitioner and therefore, the application under Order 9, Rule 13, CPC was not maintainable and it was open for the petitioner to file an appeal against the decree passed in the suit. The petitioner carried an appeal against the said order before the learned Additional District Judge, Jeypore, who dismissed the same on the very same grounds. Learned Appellate Court further held that since the defendant had been examined in part, the Court proceeded under Explanation to Order 17, Rule 2, CPC and therefore, no illegality has been committed by the Court below. ( 3 ) LEARNED counsel for petitioner submits that in absence of the defendant-petitioner the court below should have proceeded to dispose of the suit in one of the modes provided under order 9 and could not have disposed of the suit on merits. ( 4 ) ORDER 17, Rule 3, CPC provides that 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 ) RULE 2 of Order 17, is quoted below:"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. 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. "rule 2 specifies that where on any day to which hearing of the suit is adjourned, the parties or any of them fails 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. The learned counsel appearing for the petitioner submits that in absence of the defendant No. 1 the Court could have taken recourse to Rule 2 of Order 17, but instead of doing so, the court below proceeded under the Explanation to Rule 2 of Order 17. The Explanation to rule 2 of Order 17 provides 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. It appears from the orders passed by both the Courts below that they were of the view that in view of the Explanation to Rule 2 of Order 17, CPC, the Trial Court proceeded to close the evidence from the side of the defendant and decreed the suit and there was no illegality in passing such an order. Now the question that remains to be decided is whether the Courts should have proceeded under Order 17, Rule 2 or under the Explanation to Rule 2 of Order 17. Now the question that remains to be decided is whether the Courts should have proceeded under Order 17, Rule 2 or under the Explanation to Rule 2 of Order 17. The explanation to Rule 2 of Order 17 is very clear and prescribes that where the evidence or a substantial portion of the evidence of any party has already been recorded, which means that where evidence of both sides has been closed or where substantial portion of the evidence of any party has been recorded, so as to enable the Court to do complete justice and adjudicate the dispute, then only in absence of such party on whose behalf substantial portion of the evidence has been recorded, the court may proceed to hear the suit as if such party were present. In the present case it appears from the impugned order that only defendant No. 1 was examined in part whereafter the case was adjourned to some dates on which evidence from the side of the defendants was closed in absence of the defendant-petitioner. Therefore, it cannot be said that substantial portion of the evidence from defendant's side had been recorded so as to enable the Court to do complete justice and adjudicate all the points involved in the suit. In my view, under such circumstances, the Trial court could not have passed the Impugned order in terms of Explanation to Order 17, rule 2, CPC and the impugned order has to be construed to be one under Order 9. ( 6 ) 1, therefore, allow the revision, quash the impugned orders, allow the application under Order 9, Rule 13, CPC filed by the petitioner and set aside the decree passed by the trial Court. The Trial Court is directed to take up further hearing of the suit. Since no one has appeared before this Court on behalf of the plaintiff-opposite party in spite of valid service of notice, it is directed that the learned Civil judge (Senior Division) shall notice the parties fixing a date and proceed with the suit in accordance with law. Revision allowed.