ORDER: 1. This Court ordered Notice Before Admission on 13.03.2008 and granted interim stay for a limited period, which is being extended from time to time. Sri Balagopal entered appearance on behalf of the respondents. 2. The respondents in the revision petition filed C.M.P.No.3057 of 2008 with a prayer to vacate the interim stay granted by this Court. At the stage of hearing of the application to vacate the interim stay, Sri Rathangapani Reddy, learned counsel representing the revision petitioner and Sri Balagopal, representing the respondents made elaborate submissions and also made a further request to dispose of the revision petition itself finally. Hence, the revision petition is being disposed of finally by this Court with the consent of both the counsel. 3. Sri Rathangapani Reddy, the learned counsel representing the revision petitioner would maintain that in the facts and circumstances of the case, the decree made by the learned Additional Senior Civil Judge, Nandyal, (Fast Track Court) to be taken as a decree made on merits and the only remedy available to the respondents/defendants may be to prefer an appeal and the application under Order IX Rule 13 of the Code of Civil Procedure (hereinafter in short referred to as 'the Code' for the purpose of convenience) is not maintainable. The learned counsel would also maintain that the respondents/defendants contested the suit by filing written statement and they had cross-examined the plaintiff's witnesses as well, but failed to adduce their evidence in spite of repeated adjournments and this fact had also been recorded by the learned Additional Senior Civil Judge, Nandyal (FTC). Even in this view of the matter, the application, which had been filed to set aside the ex parte decree being a misconceived remedy, the learned Additional Senior Civil Judge, Nandyal (FTC) should have dismissed the application instead of allowing the same on condition of the defendants paying Rs.250/- to the plaintiff or his counsel and also on a further condition that the defendant should get ready for trial and produce all the evidence on 03.03.2008, failing which the petition shall stand dismissed. The learned counsel also had taken this Court through the language employed under Order XVII Rule 2 and Order XVII Rule 3 of the Code and would maintain that the learned Additional Senior Civil Judge, Nandyal (FTC) had not appreciated these provisions in proper perspective and hence the impugned order may be set aside and the revision petition to be allowed. The learned counsel also placed strong reliance on certain decisions to substantiate his submissions. 4. Per contra, Sri Balagopal, the learned counsel representing the respondents had taken this Court through Order XVII Rule 2 and Order XVII Rule 3 of the Code as well and laid emphasis on the A.P. Amendments appended to both Order XVII Rule 2 and Order XVII Rule 3 of the Code, and would maintain that in the facts and circumstances, of the case, the learned Additional Senior Civil Judge, Nandyal (FTC) arrived at the correct notation while allowing I.A.No.642 of 2007 in O.S.No.396 of 2003 giving liberty to the respondents to adduce evidence by fixing the date. The learned counsel would also maintain that it may be true that the matter might have been adjourned on certain occasions and may be that was the reason why the learned Additional Senior Civil Judge, Nandyal (FTC) while allowing the application on payment of costs, fixed the date for production of evidence, in fact in a way this is a conditional order. Hence in the light of the facts and circumstances, since the application under Order IX Rule 13 of the Code being maintainable the impugned order does not suffer from any illegality whatsoever and the revision petition is liable to be dismissed. The learned counsel also placed reliance on certain decisions to substantiate his submissions. 5. Heard the counsel on record and perused the reasons recorded by the learned Additional Senior Civil Judge, Nandyal (FTC) in the order impugned in the present revision petition. 6. The respondents herein are the defendants in the suit in O.S.No.396 of 2003 on the file of the Additional Senior Civil Jduge, Nandyal (FTC). They filed I.A.No.642 of 2007 under Order IX Rule 13 r/w Section 151 of the Code praying for setting aside the ex parte decree made against them on 18.12.2007 and to permit them to adduce evidence. The respondents herein are the defendants in the suit in O.S.No.396 of 2003 on the file of the Additional Senior Civil Jduge, Nandyal (FTC). They filed I.A.No.642 of 2007 under Order IX Rule 13 r/w Section 151 of the Code praying for setting aside the ex parte decree made against them on 18.12.2007 and to permit them to adduce evidence. The said application was resisted mainly on the ground that the suit had been disposed of on merits and hence this remedy by way of an application under Order IX Rule 13 of the Code itself being a misconceived remedy and the same is liable to be dismissed. 7. Incidentally, certain other grounds also had been raised. It had been pointed out that even after the closure of evidence on the plaintiff's side at least on four occasions the suit had been adjourned for the purpose of the defendants' letting in evidence on their side. The specific stand taken in the affidavit filed in support of the application, is that the matter was posted to 12.12.2007 for defendants' evidence and the defendants being not present, their evidence was closed and the suit was posted for judgment. An application was filed to reopen the suit on 14.12.2007 but the office had not placed the said application before the Court before pronouncement of the judgment, and consequently, the judgment was pronounced. At the time of pronouncement of judgment, the said application was dismissed. The application to set aside ex parte decree was opposed on the ground that the remedy by way of an application under Order IX Rule 13 of the Code, is a misconceived remedy since the same is not applicable. Further specific stand had been taken that the defendants, who made the application, failed to produce evidence though several opportunities had been given and hence the said judgment to be taken as pronounced on merits. Further specific stand had been taken that the defendants, who made the application, failed to produce evidence though several opportunities had been given and hence the said judgment to be taken as pronounced on merits. The learned Additional Senior Civil Judge, Nandyal (FTC) having framed the points for consideration at para-4 proceeded to discus the rival contentions advanced by the counsel on record referred to in Daka Venkatarami Reddy v. Central Bank of India, Ongole1 B. Janakiramaiah Chetty v. A.K. Parthasarathi and others2 and Satyamma and another v. G. Lalitha Bai3 and ultimately came to the conclusion that though it may be true that the defendants were absent continuously on four occasions after the suit was posted for defendants' evidence, in view of the reasons specified that the concerned party had been suffering from severe fever, it may not be safe to reject the application, and accordingly allowed the application on payment of costs of Rs.250/- and also on a further condition that the defendants should get ready for trial and produce all his evidence on 03.03.2008 failing which the application shall stand dismissed. 8. At the out set it may be stated that it is no doubt true that quite often this problem whether Order XVII Rule 2 or Order XVII Rule 3 would be applicable when substantial operation of the evidence had already been recorded and one of the parties non-cooperating for final disposal of the matter, if in such a case judgment is made, such judgment has to be treated as one made ex parte or on merits. If the Courts are to give an opportunity by entertaining the applications under Order IX Rule 13 of the Code, may be in several cases, the Courts may have to face difficulties in finally disposing of the matters. But however, if the relevant provisions Order XVII Rule 2 and Order XVII Rule 3 of the Code read with relevant A.P. amendments appended to the said Rules, if point out other wise, this Court is left with no other option. However, several decisions had been placed by the counsel representing the respective parties before this Court. 9. Before dealing with the decisions, which had been cited by both Sri Rathangapani Reddy and Sri Balagopal, it would be appropriate to have a glance at the relevant provisions of the Code. 10. However, several decisions had been placed by the counsel representing the respective parties before this Court. 9. Before dealing with the decisions, which had been cited by both Sri Rathangapani Reddy and Sri Balagopal, it would be appropriate to have a glance at the relevant provisions of the Code. 10. Order XVII Rule 2 dealing with the procedure if parties fail to appear on any day fixed, reads as under. "2. Procedure if parties fail to appear on any day fixed:-- 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." The High Court of A.P. amendment specifies at the end of Rule 2, the following explanation should be added. "The mere presence in Court of a party or his counsel not duly instructed shall not be considered to be an appearance of the party within the meaning of this rule." 11. Order XVII Rule 3 of the Code dealing with Court may proceed notwithstanding either party fails to produce evidence, reads as under. 3. Court may proceed notwithstanding either party fails to produce evidence:- 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.) The A.P. High Court amendment specifies at the end of Rule 3, the following proviso to be added. "Provided that in a case where there is default under this rule as well as default of appearance under Rule 2, the Court will proceed under Rule 2." 12. "Provided that in a case where there is default under this rule as well as default of appearance under Rule 2, the Court will proceed under Rule 2." 12. Sri Rathangapani Reddy, learned counsel representing the petitioner laid emphasis on the fact that after the plaintiff's side evidence had been closed, the defendants actively participated in cross-examining the witnesses on the side of the plaintiff and after the matter had been adjourned, opportunity had been given to the defendants to adduce evidence on four occasions, and this fact may have to be taken note of while deciding the question whether an application under Order IX Rule 13 of the Code can be maintained even in such a case. The submission, prima facie, no doubt appears to be attractive but however, the said contention may have to withstand the test of legal scrutiny in the backdrop of the relevant provisions of the Code specified supra. Strong reliance was placed on the judgment made by the learned Judge of this Court in M/s. Kalagara Hari Babu v. E. Krishna Rao where the learned Judge observed that where a suit was dismissed on plaintiff's refusal to lead evidence in spite of granting adjournments at his instance, it is an order made under Order XVII Rule 3 of the Code and hence the application to set aside such order on dismissing the suit for default under Order IX Rule 9 of the Code cannot be maintained. 13. The Learned Judge in fact referred to the cases reported in 1. M. Agaiah v. Mohd. Abdul Kareem (1960 ALT 835)= AIR 1961 A.P. 201 (F.B.); 2. M. Gurunatha Rao v. B. Ramamurthy; AIR 1965 A.P. 479 3. Marothu Surya Rao v. Paluri Peddiyya and others; AIR 1967 A.P. 152 . 4. Thummala Suryamma v. The Andhra Pradesh State Electricity Board and others; AIR 1975 A.P. 90 5. B. Seshagiri Rao v. Sri Ramalingeswara Swamivaru Devasthanam, Nadigampadu, rep. by its Managing Trustee; 1987 (1) ALT 80 6. Dena Bank, Bank Street, Hyderabad v. M/s. Industrial Times, A Registered Partnership Firm, rep. by its managing Partner, P.D. Desai and others; 1993 (1) ALT 727 . 7. Pugal v. Kamala and another; AIR 1984 Madras 262. 14. B. Seshagiri Rao v. Sri Ramalingeswara Swamivaru Devasthanam, Nadigampadu, rep. by its Managing Trustee; 1987 (1) ALT 80 6. Dena Bank, Bank Street, Hyderabad v. M/s. Industrial Times, A Registered Partnership Firm, rep. by its managing Partner, P.D. Desai and others; 1993 (1) ALT 727 . 7. Pugal v. Kamala and another; AIR 1984 Madras 262. 14. It is no doubt true that the learned Judge had taken note of the relevant provisions at paragraph No.4 and also had referred to the decision rendered in M. Gurunatha Rao v. B. Ramamurthy5 wherein the proviso also had been dealt with. 15. Sri Balagopal, learned counsel representing the respondents, however laid emphasis on the proviso to A.P. amendment under Order XVII Rule 3 of the Code and also on the language employed in the explanation to Order XVII Rule 3 of the Code. The explanation to Order XVII Rule 2 of the Code specifies where the evidence or 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. 16. This explanation also may have to be read along with the explanation of A.P. Amendment already specified above. Even if the explanation to Order XVII Rule 2 of the Code to be taken, this Court is satisfied that the conditions specified therein are not applicable to the present case since the defendants had not chosen to commence the evidence at all. 17. Further strong reliance had been placed by Sri Balagopal on a Division Bench judgment of this Court reported in Dena Bank, Bank Street, Hyderabad v. M/s. Industrial Times, a Registered Partnership firm rep. 17. Further strong reliance had been placed by Sri Balagopal on a Division Bench judgment of this Court reported in Dena Bank, Bank Street, Hyderabad v. M/s. Industrial Times, a Registered Partnership firm rep. by its Managing Partner, P.D. Desai and others6, wherein the Division Bench while dealing with Order IX Rule 9 and Order XVII Rule 2 of the Code held that where the suit was dismissed on the ground that the parties had not cooperated at the time of adducing evidence and though the plaintiffs and the defendants evidence was available, the Court simply dismissed without considering it on merits and no reasons were given for dismissal of the case, this Court held that even though the order was passed at the presence of the defendants it is only an ex parte order and in such a case Order IX Rule 9 of the Code would be applicable. No doubt this decision is distinguishable on facts. 18. However in Daka Venkatrami Reddy v. Central Bank of India, Ongole7 a learned Judge of this Court while dealing with Order IX Rule 13 of the Code came to the conclusion that mere physical presence on the part of the defendant or his counsel does not make the decree as one under Order XVII Rule 3 of CPC if as a matter of fact the defendant did not participate in the hearing of the case, and hence, the Court below is not right in coming to the conclusion that the decree passed was on merits. Therefore, the petition filed under Order IX Rule 13 of the Code is maintainable. 19. However, reliance was also placed on B. Janakiramaiah Chetty v. A.K. Parthasarthi and others8 where the Apex Court held that where the suit was decreed ex parte on failure to appear and a remedy under Order IX Rule 13 of the Code is not lost when the Court had not resorted to explanation to Rule 2 of Order XVII while decreeing the suit ex parte and such party need not file an appeal. 20. In Raj Kumar and another v. G. Anasuya9 in a similar fact situation, the learned Judge while issuing suitable directions observed at paragraph Nos.6, 7 and 8 as under. 20. In Raj Kumar and another v. G. Anasuya9 in a similar fact situation, the learned Judge while issuing suitable directions observed at paragraph Nos.6, 7 and 8 as under. A plain reading of the above provision would indicate that there should be a portion or substantial portion of the evidence on behalf of a party to fall within the ambit of the explanation. In this case, there is no evidence at all on behalf of the defendants. Therefore, Order 17 Rule 2 C.P.C. Explanation is not attracted in this case. In K. Ramachandran Raju v. Syndicate Bank, mehdipatnam Branch, Hyderabad,10 a Bench of this Court in similar circumstances considered the scope of Order XVII Rule 2 Explanation and held as follows: "11. Explanation to Order XVII Rule 2 states 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 matter as if such party were present. The learned Counsel submits that the above explanation is attracted only when a party has already adduced evidence and ailed to adduce further evidence. In the instant case the defendant-appellant has not started his evidence. The plaintiff only closed his evidence on 17.08.1982 and the plaintiff had no further evidence to be adduced. In the circumstances, this explanation is not applicable to the present case in view of the fact that the defendant-applicable to the present case in view of the fact that the defendant- appellant has not started adducing evidence on his side. Therefore, the provision under which lower Court could proceed and could be deemed to have proceeded is Order IX Rule 13 C.P.C." Again a single Judge of this Court in Gali Laxmamma v. Raparthi Anjaiah11 in similar circumstances held: "3.As the District Munsif proceeded with the case without giving any opportunity to the defendant, the same gives discretion to the Court to proceed only under Rule 3, and deliver Judgment but that discretion is limited only in cases where a party is absent who has led some evidence or has examined substantial part of their evidence. But in this case the party that was absent did not open his case at all before the presiding officer disposed of the suit itself on merits. But in this case the party that was absent did not open his case at all before the presiding officer disposed of the suit itself on merits. As the discretion vested in the Court was wrongly exercised in this case though the order is on merits, it has to be treated as an ex parte order and the petitioner is entitled to file an application under Order IX Rule 13 C.P.C. seeking to set aside the ex parte order. In such an event, if the trial Court dismissed the application, only C.M.A. will lie under Order 43 Rule (10 (d) of C.P.C. and the party cannot be directed to file a regular first appeal as was held by the Subordinate Judge, in this case. The order of the Subordinate Judge cannot be sustained in law as an application under Order IX Rule 13 can e very much filed in this case in the light of the facts stated above." The learned Judge followed the ratio of the decision in Prakash Chander Manchanda & another v. Smt. Janki Manchanda. In view of the clear pronouncements, the point involved in the case is no longer res integra. The facts of the case come within the four corners of the judgments cited above. Consequently, I hold that an application under Order IX Rule 13 C.P.C. is certainly maintainable. The Judgment under Revision is set aside and the lower Court is directed to entertain the application filed under Order IX Rule 13 C.P.C. and to decide the same on merits. 21. In the light of the decisions specified above, this Court is of the considered opinion that the fact that the matter had been adjourned on certain occasions for the evidence of the defendants and the defendants had not cooperated at all to commence their evidence, may not alter the situation. 21. In the light of the decisions specified above, this Court is of the considered opinion that the fact that the matter had been adjourned on certain occasions for the evidence of the defendants and the defendants had not cooperated at all to commence their evidence, may not alter the situation. In the facts and circumstances of the case and in the light of the clear language of both Order XVII Rule 2 and Order XVII Rule 3 of the Code as applicable to the State of A.P. by virtue of the amendments specified supra, the view expressed by the learned Judge relating to the maintainability of Order IX Rule 13 of the Code is well justified and further the learned Judge also was conscious of the fact that the defendants are taking adjournments repeatedly and hence fixed the date for production of evidence apart from imposing costs. Hence the impugned order does not suffer from any illegality whatsoever. 22. Accordingly, the Civil Revision Petition shall stand dismissed. No order as to costs. Since the date of hearing fixed for production of evidence being 3.03.2008 having been lapsed, let the learned Judge fix an early date for production of evidence on the part of the defendants and further proceed with the matter in accordance with law and decide the matter as early as possible.