JUDGMENT D. Biswas, J. 1. This revision petition under Section 115 of the Code of Civil Procedure read with Article 227 of the Constitution of India is directed against the judgment and order dated 22.12.2003 passed by the learned Civil Judge (Senior Division) No. 1, Guwahati in Misc. Appeal No. 20 of 2003. 2. I have heard Mr. N. Dhar, learned Counsel for the petitioners and Mr. M.K. Choudhury, learned senior counsel for the respondent. 3. The erstwhile revision petitioner Jagadish Chandra Ghosh, the predecessor-in-interest of the present revision petitioners, filed Title Suit No. 284/98 in the court of the learned Civil Judge (Jr. Divn.) No. 4, Guwahati praying for a decree for ejectment of the respondent on the ground that the respondent defaulted to pay house rent of the suit premises from 1.7.1996 onwards in spite of repeated demand. The defendant contested the suit by filing written statement. The learned trial Judge on conclusion of trial decreed the suit by the judgment dated 30.1.2001 with costs. The learned trial Judge decided, after appreciation of the evidence on record, that the defendant is a defaulter in respect of payment of the rent to the plaintiff and on such finding ordered preparation of decree for realization of the arrear rent amounting to Rs.9,240 without interest from 1.7.1996 and for recovery of possession of the suit premises by evicting the defendant. The judgment clearly shows that the learned trial Judge discussed the evidence of the witnesses examined by the plaintiff landlord in details to arrive at the above conclusion. 4. It would appear that the defendant was absent on the date fixed for his evidence. The defendant was also absent on the subsequent dates fixed for argument. The judgment dated 30.1.2001 was delivered on the basis of evidence of the PWs in absence of the defendant. 5. The question to be answered in this petition is whether the decree in question was ex parte or intra-party. Needless to say that if the decree was a contested one, in that case the application under Order 9, Rule 13 of the CPC would not lie. 6. The learned first appellate court found that the respondent-tenant had earlier filed Title Suit No. 174/98 seeking a declaration that the petitioner is the tenant in respect of the suit house and for protection from forceful eviction by the landlord. 6. The learned first appellate court found that the respondent-tenant had earlier filed Title Suit No. 174/98 seeking a declaration that the petitioner is the tenant in respect of the suit house and for protection from forceful eviction by the landlord. Both the suits were analogously tried in the court of the learned Civil Judge (Jr. Division) No. 1, Guwahati. For administrative reasons, Title Suit No. 284/98 was transferred to the learned Civil Judge (Jr. Division) No. 4, Guwahati. Thereafter, an application was submitted before the learned District Judge that both the suits be tried together by the same court. The aforesaid application was numbered as Transfer Misc. Case No. 534/2000. The learned District Judge ordered that the Title Suit No. 284/98 be transferred to the court of the learned Civil Judge (Jr. Division) No. 2 for adjudication. The petitioner filed a petition before the learned trial Judge praying for adjournment of the suit till receipt of the record of the other Title Suit. The cause list dated 12.11.2000 and 13.11.2000 did not indicate anything about the case. The Bench Assistant also informed that no date has been fixed. On 26.3.2001, the petitioner could come to know that a decree has been passed in Title Suit No. 284/98 on 30.1.2001. It is in this context, the application under Order 9, Rule 13 of the CPC was filed for setting aside the ex parte judgment and order dated 30.1.2001. The learned first appellate court found that because of the communication gap the defendant tenant could not produce any evidence in support of his case in Title Suit No. 284/98 and in consequence of such default beyond his control, the judgment and decree were passed. On such finding, the decree has been treated ex parte and the matter remanded back to the learned trial court for disposal of the application under Order 9, Rule 13 of the CPC afresh. 7. The hon'ble Supreme Court in Prakash Chander Manchanda and Anr. v. Smti Janki Manchanda [1987] 1 SCR 288 held as follows: 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 the matter in accordance with Order 17, Rule 2 in any one of the modes prescribed under Order 9 of the CPC. After amendment by Act 104 of 1976 to Order 17, Rules 2 and 3 in cases where a party is absent, only course is as mentioned in Order 17, Rule 3(b) to proceed under Rule 2. Therefore, in absence of the defendant, the court has no option but to proceed under Rule 2. Similarly the language of Rule 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 Order 9. The Explanation to Rule 2 gives discretion to the court to proceed under Rule 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. Also, in such a case, the court cannot proceed to dispose of the suit on merits and after it proceeds to dispose of the suit in any one of the modes provide under Order 9, in the present case to pass ex parte decree, the defendant can subsequently file an application under Order 9, Rule 13 for setting aside ex parte decree. 8. Going by what is stated above it would appear that the judgment and decree were passed by the learned trial Judge before the defendant could lead evidence in support of his case. In that view of the matter, the learned trial Judge ought not to have proceeded to dispose of the suit on merits. For all purposes, the decree in question will have to be treated as an ex parte as it was passed in absence of the defendant before any evidence was adduced. The default on the part of the defendant has been occasioned by delay in transferring the record of title suit to the court of the learned Civil Judge No. 2 as per the order of the learned District Judge and for a communication gap about the date fixed. 9. Therefore, I do not find any infirmity in the order passed by the learned Civil Judge (Sr. Division) No. 2. Guwahati in Misc. Appeal No. 20/2003. The revision petition is accordingly dismissed. Petition dismissed.