Arvind Kumar Tripathi (II), J.— Heard learned Counsel for the parties. The scope and ambit of Explanation to Order 17 Rule 2 of the Code of Civil Procedure, 1908 falls for determination in this appeal. As the issues are primarily legal, detailed reference to the factual aspects would be unnecessary. Factual background in a nutshell is as follows:- A Civil Suit R.S. No.269 of 1997 was filed by Baba Andaz Shah Warisi against Faizan Waris, Abbas Ali and Sharangdhar Mohan. The defendants/appellants herein appeared and filed their written statement denying the plaintiff's version and also some additional statement was given. Issues were framed on 4.12.2001 and on 11.1.2002 was fixed for final hearing. On 11.1.2002, the plaintiff sought adjournment and 15.2.2002 was fixed for final hearing. Again on 15.2.2002 and 19.3.2002, the plaintiff sought time and 26.4.2002 was fixed for final hearing. On 26.4.2002, 20.5.2002, 17.7.2002 and 7.8.2002, Lawyers were on strike and hence 26.8.2002 was fixed for final hearing. On 26.8.2002, the plaintiff was present, but he did not adduce any evidence, hence, the plaintiff's evidence was closed and 7.10.2002 was fixed for defendants' evidence. On 7.10.2002, the defendants sought adjournment and 22.10.2002 was fixed for defendants' evidence. On 22.10.2002, the plaintiff was absent and defendants filed their evidence through affidavit and since there was no one to cross-examine the witness, opportunity for cross-examination was closed and on 29.10.2002 was fixed for arguments. On 22.10.2002, arguments were heard and 7.11.2002 was fixed for judgment and on that date, the Suit was dismissed with costs. Feeling aggrieved, a Civil Appeal No.10 of 2003 Baba Andaz Shah versus Faizan Waris and others. The learned 4th Additional District Judge, Faizabad, while allowing the appeal, vide judgment and order dated 19.10.2006, held that the order passed by the trial Court was ex parte order and hence the appellant/plaintiff was not granted opportunity to adduce evidence. The matter was liable to be remanded back. So, the judgment and order dated 7.11.2002 was quashed and the matter was remanded back to the trial Court to decide the case afresh, after giving an opportunity to the appellant and to lead his evidence. Feeling aggrieved, this FAFO has been filed. This appeal was dismissed for want of prosecution, vide order dated 24.4.2013, as the counsel for the appellants was not present on that date. Feeling aggrieved, this FAFO has been filed. This appeal was dismissed for want of prosecution, vide order dated 24.4.2013, as the counsel for the appellants was not present on that date. Therefore, an application for recall of the order dated 24.4.2013 [C.M. Application No.42660 of 2013] has been preferred. As sufficient ground has been shown by the appellants' counsel, the application is allowed and the order dated 24.4.2013 is recalled. The FAFO is restored to its original number and the parties were heard on merits. The main question involved in the instant appeal is whether the order passed by the trial Court is on merits or is an order passed under Order 9 of the Code of Civil Procedure. Learned Counsel for the appellants has argued that the order passed by the Trial Court is an order on merit and the Appellate Court should not have remanded the matter to the Trial Court; instead, it should have dismissed the appeal. It was argued from the side of the respondents that when the plaintiff has not adduced evidence on 26.8.2002, then the Trial Court should have dismissed the case or should have followed the procedure prescribed in Order 9 of Code of Civil Procedure. Since the controversy revolves around Order 17 Rule 2 including its explanation, the same is quoted below alongwith Rule 3 thereof, since it has relevance:- "2. Procedure if parties fail to appear on 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. 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. 3. Court may proceed notwithstanding either party fails to produce evidence, etc. 3. Court may proceed notwithstanding either party fails to produce evidence, etc. - 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." After going through the provisions of Order 17 Rule 2 and its explanation, it reveals that the same deals with the situation, when any of the parties fail to appear. In the instant case, on 26.8.2002, the plaintiff was present, but no evidence was adduced, hence his evidence was closed. Order 17 Rule 3 CPC relates to the situation, when any party to whom time was granted fails to produce his evidence, then the Court is bound to proceed to decide the case forthwith, if the parties are present, and if the parties are, or any of them is absent then the Court is bound to proceed under Rule 2. In the instant case, on the date when the plaintiff's evidence was closed, he was present, but the date was not adjourned for leading the evidence as on the preceding date Lawyers' were abstaining from judicial work and the plaintiff has not moved any adjournment application on his behalf. On 22.10.2002, defendants were present but the plaintiff was not present, hence the Trial Court should have proceeded under Order 17 Rule 3 (b) of CPC by proceeding under Order 17 Rule 2 CPC. Since there was no substantial evidence on record on behalf of the parties, the Trial Court was bound to dispose of the Suit in one of the modes directed in that behalf by Order 9 CPC, but certainly the Trial Court could not have proceeded to decide the case on merits. However, the Appellate Court has held that since the matter should be decided on merits, it remanded the case after going through the decisions of this Court in Rajrani versus District Judge, Lucknow [LCD 1991 Page 1134 (Alld)] and Kuri Lal versus Banarasi Devi [LCD 1987 Page 44]. However, the Appellate Court has held that since the matter should be decided on merits, it remanded the case after going through the decisions of this Court in Rajrani versus District Judge, Lucknow [LCD 1991 Page 1134 (Alld)] and Kuri Lal versus Banarasi Devi [LCD 1987 Page 44]. In view of above, we do not find any illegality in the impugned order, hence this appeal is liable to be dismissed and is hereby dismissed. _____________