JUDGMENT :- 1. The Petitioner/Plaintiff has projected these two Civil Revision Petitions before this Court, as an aggrieved person, as against the orders dated 22.02.2010 in I.A.Nos.5 & 4 of 2010 in O.S.No.816 of 1999 on the file of Learned Second Additional Sub Court, Erode [First Additional Sub Court, in-charge]. 2. The Learned Second Additional Sub Judge, Erode, while passing the orders in I.A.No.5 of 2010 in O.S.No.816 of 1999 on 22.02.2010, has, among other things, observed that 'Reasonable opportunities have been provided to both sides and also that in pursuance of the orders passed by the Hon'ble High Court, the documents have been received in the main suit and based on merits, Judgment has been delivered and therefore, no hardship and loss would be caused to both of them etc. Further, the trial Court has opined that in view of the fact that already I.A.No.4 of 2010 is to be allowed without any objection, the application filed by the Petitioner (Respondent in CRP.1382 of 2010/2nd Defendant) is to be allowed consequently in law and resultantly, allowed the same without costs'. 3. The trial Court, while passing the order dated 22.02.2010 in I.A.No.4 of 2010 in O.S.No.816 of 1999, has, inter alia, observed that till the date of enquiry in I.A.No.4 of 2010, no counter has been filed and instead of an endorsement has been made that there is no objection for allowing of the Petition and consequently, an application has been allowed without costs. 4. The Learned Counsel for the Petitioner/Plaintiff submits that the trial Court has failed to appreciate that the main suit came to be decreed on 21.01.2010 and unless the findings rendered by the Court are set aside in the manner known to law, fresh reasons in the suit are not to be assigned by the trial Court. 5. The Learned Counsel for the Petitioner/Plaintiff urges before this Court that the evidence on the side of Petitioner/Plaintiff was over and that the 1st Defendant (Respondent in CRP.1383/2010) was examined in chief and cross and the suit was adjourned for evidence on the side of the 2nd Defendant. 6. 5. The Learned Counsel for the Petitioner/Plaintiff urges before this Court that the evidence on the side of Petitioner/Plaintiff was over and that the 1st Defendant (Respondent in CRP.1383/2010) was examined in chief and cross and the suit was adjourned for evidence on the side of the 2nd Defendant. 6. According to the Learned Counsel for the Petitioner/Plaintiff, the evidence or a substantial portion of the evidence of the Defendants have already been recorded and they failed to appear on the subsequent hearing date and as such, the trial Court in its discretion proceeded with the main case as if such parties were present. Therefore, the Judgment delivered by the trial Court on 21.01.2010 in the main suit is based on merits as per Order 17 Rule 3 of Civil Procedure Code. 7. Advancing his arguments, the Learned Counsel for the Petitioner/Plaintiff submits that the Defendants have taken part in the suit trial proceedings effectively. Added further, they cross examined the witnesses produced by the Revision Petitioner/Plaintiff. Subsequently, the 1st Defendant was examined as D.W.1 and the suit was adjourned to a different date for evidence being adduced is on the side of the 2nd Defendant. As such, the evidence available on record is sufficient to decide the suit on merits. 8. According to the Learned Counsel for the Petitioner/Plaintiff, the main suit was filed before the trial Court in the year 1999 and that P.W.1 was examined in chief on 20.09.2002 and that he was cross examined on 19.01.2006. On 30.01.2006 the evidence of P.W.2 and P.W.3 were over. D.W.1's evidence was over on 17.08.2009 and the Defendants side evidence was closed on 05.01.2010. Thus, it is quite evident that the suit was pending for nearly 11 years and it was dragged endlessly. 9. The Learned Counsel for the Petitioner/Plaintiff contends that the trial Court has failed to appreciate that no objection was given only to number the application, since the maintainability of the application was raised as an issue by the Office and in any event, the concession given by the Learned Counsel cannot be a plea to order the application unmindful of the settled legal position. 10. 10. That apart, the Learned Counsel for the Petitioner/Plaintiff submits that the Petitioner/Plaintiff has filed counter to I.A.No.4 of 2010 and he also filed a separate counter statement in I.A.No.5 of 2010 and the reasons assigned by the trial Court to set aside the decree passed on merits by allowing the petition under Order 9 Rule 13 of Civil Procedure Code are incorrect and unsustainable in the eye of law. 11. In response, it is the submission of the Learned Counsel for the Respondent in CRP.No.1383/2010 (1st Defendant) that the Respondent filed I.A.No.4 of 2010 inter alia making averments that he was examined and cross examined but had to mark the Handwriting Expert's Report by examining the Expert because it was received after his examination and after the disposal of CRP.Nos.1223 and 1224 of 2007 by this Court on 19.06.2009, he paid batta for summoning the Experts and that the summons were not served. Moreover, he came to know that the Expert, who examine the document, had retired from service and he was trying to ascertain the correct address and send fresh batta. Further, the matter was posted to 31.12.2009 for payment of batta. But on that day, he was laid up with viral fever and therefore, could not be present before the Court and also his counsel was not able to attend the Court on that day on due to medical reasons and the trial Court called him, found absent and recorded as batta not paid much later. 12. Continuing further, the Learned Counsel for the Respondent (1st Defendant) brings it to the notice of this Court that the 1st Defendant filed I.A.No.1 of 1993 to reopen his side because of the reason only after reopening on his side, he could pay batta. The said I.A. was dismissed by the trial Court on 20.01.2010. An exparte Judgment and Decree passed in the main suit on 21.01.2010 without providing opportunity to him to examine the Handwriting Expert and without hearing his side arguments. 13. In effect, the Respondent (1st Defendant) has sought a relief in I.A.No.4 of 2010 under Order 9 Rule 13 of Civil Procedure Code praying for issuance of an order by the trial Court to set aside the exparte Judgment and Decree dated 21.01.2010. 14. 13. In effect, the Respondent (1st Defendant) has sought a relief in I.A.No.4 of 2010 under Order 9 Rule 13 of Civil Procedure Code praying for issuance of an order by the trial Court to set aside the exparte Judgment and Decree dated 21.01.2010. 14. In the counter to I.A.No.4 of 2010 in O.S.No.816 of 1999, the Revision Petitioner/Plaintiff has categorically stated that it is true that the suit was posted on 31.12.2009 for further evidence of the Defendant side. The Court passed an order from 17.08.2009 onwards to adduce evidence on the Defendant side. It is true that the side of the Defendant was closed on 05.01.2010 and posted for arguments. 15. In the affidavit in I.A.No.5 of 2010 [filed by the Petitioner/2nd Defendant/Respondent in CRP.No.1382 of 2010), it is mentioned that the main suit was posted on 05.01.2010 for evidence of Petitioner and that he was ill with fever and could not attend the trial Court. Added further, when he contacted his counsel in the second week of January, he came to know that the trial Court pleased to close his side evidence and posted the case for arguments. In the meanwhile, the 1st Defendant (Respondent in CRP.No.1383/2010) projected an application to reopen the case for adducing his side evidence and to mark the Handwriting Expert opinion through the Expert. Since he is the purchaser from the 1st Defendant, his case also depends upon the evidence of the 1st Defendant. As such, he was under the impression that after the disposal of the reopen application and evidence on the side of the 1st Defendant, his side evidence could commence on an application. 16. That apart, the trial Court dismissed the application filed by the 1st Defendant on 21.01.2010 and without hearing the arguments, decreed the main suit on 22.01.2010. 17. Since the main suit is one for specific performance, it should not have been disposed of in such a hurried manner and without providing sufficient opportunities to the parties. Therefore, he has sought for issuance of an order by the trial Court to set aside the Exparte Decree dated 22.01.2010 passed in the main suit in O.S.No.816 of 1999 and restore the suit to its file. 18. Therefore, he has sought for issuance of an order by the trial Court to set aside the Exparte Decree dated 22.01.2010 passed in the main suit in O.S.No.816 of 1999 and restore the suit to its file. 18. In the counter to I.A.No.5 of 2010 in O.S.No.816 of 1999 (filed by the Revision Petitioner/Plaintiff), it is crystal clearly mentioned that 'As a matter of fact, after hearing the arguments, the suit was decreed on 22.01.2010 and further denied that the decree is an exparte one passed on 22.01.2010, the petition filed under Order 9 Rule 13 is unsustainable.' 19. The Learned Counsel for the Revision Petitioner, to lend support to the contention that the decree dated 22.01.2010 passed by the trial Court is not an exparte one, cites the decision of the Hon'ble Supreme Court in B.Janakiramaiah Chetty V. A.K.Parthasarthi and others, 2003 (2) CTC 242, at page 245, in paragraph 9, it is laid down as follows: "9. In Rule 2. the expression used is "make such order as it deems fit". as an alternative to adopting one of the modes directed in that behalf by Order IX." 'Under Order XVII Rule 3(b), only course open to the Court is to proceed under Rule 2, when a party is absent. Explanation thereto gives a discretion to the Court to proceed under Rule 3 even if a party is absent. But such a course can be adopted only when the absentee party has already led evidence or a substantial part thereof. If the position is not so, the Court has no option but to proceed as provided in Rule 2. Rules 2 and 3 operate in different and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally granted and not for any special purpose. On the other hand. Rule 3 operates where the adjournment has been given for one of the purposes mentioned on the Rule. While Rule 2 speaks of disposal of the suit in one of the specified modes, Rule 3 empowers the Court to decide the suit forthwith. The basis distinction between the two Rules, however, is that in the former, any party has failed to appear at the hearing, while in the letter the party though present has committed any one or more of the enumerated defaults. The basis distinction between the two Rules, however, is that in the former, any party has failed to appear at the hearing, while in the letter the party though present has committed any one or more of the enumerated defaults. Combined effect of the Explanation to Rule 2 and Rule is that a discretion has been conferred on the Court. The power conferred is permissive and not mandatory. The Explanation is in the nature of a deeming provision, when under given circumstances, the absentee party is deemed to be present." Further, in the aforesaid decision, in paragraph 10, it is held as follows: "10. The crucial expression in the Explanation is "where the evidence or a substantial portion of the evidence of a party". There is a positive purpose in this legislative expression. It obviously means that the evidence on record is sufficient to substantiate the absentee party's stand and for disposal of the suit. The absentee party is deemed to be present for this obvious purpose. The Court while acting under the Explanation may proceed with the case if that prima facie in the position. The Court has to be satisfied on the facts of each case about this requisite aspect. It would be also imperative for the Court to record its satisfaction in that perspective. It cannot be said that the requirement of substantial portion oft he evidence of the evidence having been led for applying the Explanation is without any purpose. If the evidence on record is sufficient for disposal of the suit, there is no need for adjourning the suit for deferring the decision." 20. He also cites the decision of this Court in T.Kalyana sundaram V. M.S.Arumuganayakar, 2005 (4) CTC 451 at page 454 to 456, wherein it is, inter alia, observed as follows: "5. ... In this case, the plaintiff had examined all his witnesses in chief. As the defendant did not cross examine them, the plaintiff's side was closed and the defendant was called upon to produce his evidence, which he failed. If the Explanation to Rule 2 of Order 17, gets attracted, then, the Court may exercise its power under Order 17, Rule 3(a) of the Code of Civil Procedure. As the defendant did not cross examine them, the plaintiff's side was closed and the defendant was called upon to produce his evidence, which he failed. If the Explanation to Rule 2 of Order 17, gets attracted, then, the Court may exercise its power under Order 17, Rule 3(a) of the Code of Civil Procedure. Therefore the absence of a party which has let in his evidence or a substantial portion of his evidence alone is a relevant factor to be taken into account in resorting to the Explanation to Rule 2 of Order 17 of the Code of Civil Procedure. In this case, the defendant was absent and no evidence at all is on record on his behalf. Therefore the Explanation to Rule 2 does not get attract to the case on hand. If that is so, then on a reading of Order 17, Rule 3(b) and Rule 2 of Order 17, alone without the aid of Explanation to Rule 2, the Court can dispose of the suit in one of the modes directed in that behalf by Order 9. 6. The Honourable Supreme Court of India in the judgment referred to earlier while interpreting Order 17, Rules 2 and 3 had laid down the Law as hereunder: "In Rule 2, the expression used is "make such order as it deems fit", as an alternative to adopting one of the modes directed in that behalf by Order 9. Under Order 17, Rule 3(b) only course open to the Court is to proceed under Rule 2, when a party is absent. Explanation thereto gives a discretion to the Court to proceed under Rule 3 even if a party is absent. But such a course can be adopted only when the absentee party has already led evidence on a substantial part thereof. If the position is not so, the Court has no option but to proceed as provided in Rule 2. Rules 2 and 3 operate in different and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally granted and not for any special purpose. On the other hand, Rule 3 operates where the adjournment has been given for one of the purposes mentioned in the Rule. while Rule 2 speaks of disposal of the suit in one of the specified modes, Rule 3 empowers the Court to decide the suit forthwith. On the other hand, Rule 3 operates where the adjournment has been given for one of the purposes mentioned in the Rule. while Rule 2 speaks of disposal of the suit in one of the specified modes, Rule 3 empowers the Court to decide the suit forthwith. The basic distinction between the two Rules, however, is that in the former, any party has failed to appear at the hearing, while in the latter the party though present has committed any one or more of the enumerated defaults. Combined effect of the Explanation to Rule 2 and Rule 3 is that a discretion has been conferred on the Court. The power conferred is permissive and not mandatory. The Explanation is in the nature of a deeming provision, when under given circumstances, the absentee party is deemed to be present. The crucial expression in the Explanation is "where the evidence or a substantial portion of the evidence of a party". There is a positive purpose in this legislative expression. It obviously means that the evidence on record is sufficient to substantiate the absentee party's stand and for disposal of the suit. The absentee party is deemed to be present for this obvious purpose. The Court while acting under the Explanation may proceed with the case if that prima facie is the position. The Court has to be satisfied on the facts of each case about this requisite aspect. It would be also imperative for the Court to record its satisfaction in that perspective. It cannot be said that the requirement of substantial portion of the evidence or the evidence having been led for applying the Explanation is without any purpose. If the evidence on record is sufficient for disposal of the suit, there is no need for adjourning the suit or deferring the decision. This clearly has imprints of an ex parte adjudication and not of a decision on merits. There is not even any indication as to what evidence was evaluated and/or whether the merits were tested." From the above, it is clear that Law laid down by the Supreme Court in the above referred to judgment is binding on us. This clearly has imprints of an ex parte adjudication and not of a decision on merits. There is not even any indication as to what evidence was evaluated and/or whether the merits were tested." From the above, it is clear that Law laid down by the Supreme Court in the above referred to judgment is binding on us. In fact, we are guided only by the above referred to judgment in holding that the Trial Court in this case had no jurisdiction to pass a decree on merits and it ought to have disposed of the suit only in terms of Order 17, Rule 2, without the aid of the Explanation to the said sub rule. In the light of our decision, namely, the decree dated 13.10.2003 would only be an ex parte decree and not a decree on merits, we have no other go except to hold that the application under Order 9, Rule 13 filed by the defendant is maintainable." 21. However, the Learned Counsel for the Respondent in CRP.1382 of 2010 (2nd Defendant) invites the attention of this Court to the decision in M.A.Suyambulingam V. V.K.Swaminathan and another, 1988-1-L.W.-368 at page 369, in paragraphs 1 and 2, it is observed as follows: "1. This is an appeal against the order of the learned single Judge allowing A.A.O. No. 783 of 1986 and setting aside an Ex Parte judgment in O.S. No. 180 of 1983, on the file of the first Additional Subordinate Judge, Erode. The suit was taken up for trial on 22.10.1984, and on that date P.W. 1 was examined and Exs. A1 to A9 were marked. On that day, counsel for the first defendant was also present. The case was adjourned for further trial on 24.10.1984. On that day, counsel for the first defendant withdrew his appearance and the first defendant was set Ex Parte. P.W. 1 was further examined and the case was posted to 25.10.1984. It appears that on that day the second defendant was examined and Ex. B1 also was marked. The arguments of the plaintiff were heard and the judgment was delivered on 31.10.1984. On 22.11.1984 the first defendant filed an application to set aside the Ex Parte decree. That petition was dismissed by the learned Subordinate Judge. It appears that on that day the second defendant was examined and Ex. B1 also was marked. The arguments of the plaintiff were heard and the judgment was delivered on 31.10.1984. On 22.11.1984 the first defendant filed an application to set aside the Ex Parte decree. That petition was dismissed by the learned Subordinate Judge. However, on appeal, the learned single Judge of this Court allowed the appeal and set aside the judgment and decree and remanded the matter for fresh trial on merits. 2. .... As may be seen from the Explanation, the party failing to appear should have let in evidence or a substantial portion of the evidence in order to enable the Court to proceed with the case as if the party were present. The first defendant has not let in any evidence in this case. Only the plaintiff had let in evidence and the second defendant also has let in evidence. The contesting first defendant had not entered on his defence, so to say, by giving any evidence and his counsel withdrew his appearance during the examination of P.W. 1 on 24.10.1984. In such circumstances, in view of the Explanation to Rule 2 of Order 17, it would not be said that the first defendant should be treated as having begun his part of the case in the suit, entitling the Court to proceed with the case as if he was present. In the circumstances, the treatment of the case as Ex Parte was right and does not call for any interference." 22. A perusal of I.A.No.4 of 2010 in O.S.No.816 of 1999 [Petition filed under Order 9 Rule 13 of Civil Procedure Code by the 1st Defendant) shows that the Advocate for the Respondent/Plaintiff on 25.01.2010 has made the following endorsement on the petition which reads hereunder: "Taken notice No objection. Sd. xxxxx Advocate for respondent/plaintiff 25.1.2010" 23. Significantly, on the I.A.No.5 of 2010 [Petition filed under Order 9 Rule 13 of C.P.C. by the 2nd Defendant), the Learned Counsel for the Respondent/Plaintiff on 28.01.2010 has made the following endorsement: "Taken notice & oppose Prays time for counter. Sd. xxxxx Advocate for respondent 28.1.2010" 24. It is to be noted that Order 17 Rule 2 of Civil Procedure Code does not apply to a case at the stage of his/her first hearing. Sd. xxxxx Advocate for respondent 28.1.2010" 24. It is to be noted that Order 17 Rule 2 of Civil Procedure Code does not apply to a case at the stage of his/her first hearing. However, it applies to cases when they are posted to the next adjourned dates and the litigants or any of them failed to appear. Only when these two conditions are satisfied that this rule applies. In such a case, a Court of Law may either dispose of the suit in any one of the methods provided in Order 9 of Civil Procedure Code or to pass such other order as it deem fit and proper. The Explanation to Rule 2 of Order 17 C.P.C. confers a discretion on a Court of Law to proceed under Rule 3 even if a party is absent. But that discretion is confined only in respect of cases where a party who is absent has tendered some evidence or has examined sufficient part of their evidence. Therefore, it is patently evident that if on the date fixed where one of the parties remained absent and for that party no evidence has been examined up to the date, the Court has no option but to proceed to dispose of the matter in accordance with Order 17 Rule 2 of Civil Procedure Code in any one of the methods specified under Order 9 of Civil Procedure Code. Indeed, the explanation will apply to a case where evidence or a substantial portion of the evidence of a party is recorded and that party fails to appear. There being his evidence available on record already, then, a Court of Law with materials before it is to judicially dispose of the suit considering him to be present though actually absent. To put it differently, a Court of Law is to dispose of the suit on merits in that particular situation and such a disposal will not come under the purview of Order 9 of Civil Procedure Code. 25. The Explanation to Order 17 Rule 2 of Civil Procedure Code does not empower a Court of Law to dispose of the suit on merits, meaning thereby, that both parties would forfeit their right to any possible remedy under Order 9. 25. The Explanation to Order 17 Rule 2 of Civil Procedure Code does not empower a Court of Law to dispose of the suit on merits, meaning thereby, that both parties would forfeit their right to any possible remedy under Order 9. In terms of the Explanation, a Court of Law can treat only that party to be present, who had already let in his side of evidence [or substantial portion thereof] prior to his default, but not the other side who may as well be absent. Therefore, where the suit is disposed of (a) in the absence of the Defendant; (b) on evidence earlier adduced by the Plaintiff; and (c) in the presence of the Plaintiff, the remedy under Order 9, Rule 13 of Civil Procedure Code is available, as per the decision in Braithwaite, Burn and Joseph Construction Co. Ltd. V. Abdul Gafoor, AIR 1986 Calcutta 128. 26. In order to decide the suit on merits, it is not enough that the ingredients of Order 17, Rule 3 of Civil Procedure Code exist. Indeed, there must be some materials for decisions on merits, even though they may not be technically evidence. In regard to the ingredients of Order 17 Rule 3 of Civil Procedure Code, it is to be pointed out that the same comes into operative play only in a situation where the parties have failed to tender evidence after time was granted to them in this regard. The valuable right of the litigants to establish their cases by adducing evidence cannot be taken away by the Court except otherwise in a case of their omission/failure to produce evidence. Also that, such failure is required to be recorded in the order leading to closure of evidence. A reading of the ingredients of Order 17 Rule 3 of Civil Procedure Code enjoin that it is not necessary that the date fixed should be a date of final hearing. The essential thing is that opportunity to let in evidence should have been given and parties must be present. A Court of Law has a power to proceed with the suit notwithstanding the failure of either party to produce evidence. 27. The essential thing is that opportunity to let in evidence should have been given and parties must be present. A Court of Law has a power to proceed with the suit notwithstanding the failure of either party to produce evidence. 27. At this stage, this Court makes a useful reference to the following decisions to promote substantial cause of Justice: (a) In the decision Smt.Koushalya V. State Bank of Bikaner and Jaipur, AIR 1999 Rajesthan 259 at special page 262 in paragraph 13, it is observed as follows: "13. Clause (b) of Rule 3 of Order 17, C.P.C. empowers the Court to proceed in accordance with Rule 2 of Order 17, C.P.C., Rule 2 of Order 17, C.P.C., ordinarily requires the Court to proceed in accordance with the provisions of Order 9 of the Civil Procedure Code and in view of the explanation given in Rule 2 of Order 17, C.P.C., where the evidence or a substantial portion of any party has been recorded, the Court is empowered to proceed with the case otherwise than in accordance with the provisions contained in Order 9, as if such party were present. In the instant case, neither the defendant was examined nor her witnesses were examined, and therefore, the case of the defendant appellant is not covered by the explanation given in Rule 2 of Order 17, C.P.C. In these circumstances, the order dated 22-10-97, whereby the evidence of the appellant-defendant was closed can at best be regarded as an order u/Section 151, C.P.C., which saves the inherent powers of the Court to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the Court." Also, in the aforesaid decision at page 263, in paragraph 16, it is, among other things, observed as follows: "16...... Keeping these facts and circumstances in to consideration, it was a case in which even if the defendant did not produce herself and her witnesses, the Court ought to have exercised the powers conferred on it under Rule 14 of Order 16, C.P.C. The learned trial Judge has failed to do so. Keeping these facts and circumstances in to consideration, it was a case in which even if the defendant did not produce herself and her witnesses, the Court ought to have exercised the powers conferred on it under Rule 14 of Order 16, C.P.C. The learned trial Judge has failed to do so. Consequently, I have no hesitation in coming to the conclusion that it is a case in which the trial is vitiated because of denial of sufficient, opportunity to the defendant to produce her evidence and non-application of mind by the learned trial Judge under Rule 14 of Order 16, C.P.C. On this ground alone, the impugned judgment and decree deserves to be set aside and the case deserves to be remanded to the lower Court under Rule 23-A of Order 41, C.P.C." (b) In the decision Chandrakant Babulal Panchal and another V. Ashwinibhai Mancharam Patel and another, 2002 A.I.H.C. at page 4535 at special page 4536, it is, inter alia, observed thus: "... In view of the decision of Apex Court in the matter of Prakash Chander Manchandra v. Smit. Janki Manohanda reported in AIR 1987 SC 42 , and followed by this Court in unreported decision of this Court in the matter of D.Venkatesh Kumar V. M/s.B.M.Sahani, in Civil Revision Application No.1370 of 2000 decided on 11th July 2002, it is clear that once the Court proceeds to pass decree in the suit in the absence of the defendant and in the absence of any evidence having been led by the defendant in the matter, such a decree has to be construed having been passed in exercise of power under Order XVII, Rule 2 of C.P.C. as an ex-parte decree which can be subjected to an application under Order IX, Rule 13 of C.P.C." (c) In the decision of the Hon'ble Supreme Court in B.Janakiramaiah Chetty V. A.K.Parthasarthi and others, (2003) 5 Supreme Court Cases 641, it is held that 'In case of failure of a party to appear on a date of hearing, the court has discretion to proceed with the case on being prima facie satisfied on the facts of the case that evidence on record is sufficient to substantiate the absentee party's stand and for disposal of the suit'. Further, it is also opined that 'the Court must record its satisfaction and in absence of any indication as to what evidence was evaluated and/or whether merits were tested, decree passed by the court is in the nature of an ex parte decree and hence liable to be set aside under Order 9 Rule 13 of Civil Procedure Code'. (d) In the decision of this Court in Arunachallam Chettiar V. Sivalingam Chettiar, AIR 1927 Madras 799, it is held as under: "It is not necessary that a party should be formally placed ex parte before the becomes ex parte. A party is ex parte or not according as he had not or had appeared within the meaning of that term as used in O.9. The phrase "when the suit is called on for hearing", when an appearance under O.9 is in question, means on the first day of hearing, and when an appearance under O.17 is in question it is limited to the commencement of the hearing on each day of hearing. A suit is in a continuous state of being called on for hearing so long as it is being heard: A.I.R. 1924, Mad. 842; A.I.R. 1925 Mad. 21 (F.B.); 34 Cal.403, (F.B.); and 23 Bom. 414, Dist. When the real hearing of the suit has begun, witnesses for the other side have been examined, and the vakil appears for the party and cross examines those witnesses, it cannot be reasonably held that, when the Court calls upon him to enter on his defence, it is calling on the suit for hearing within the meaning of R.6." (e) In the decision Jagnnath Chauhan V. S.C.Nanda and another, AIR 2003 Delhi 394, it is observed and laid down as follows: "The terms of provision under O.17, R.3 are simple and plain. It becomes operative only in a situation where parties have failed to produce evidence after time was granted to them to do so. It is so because parties have a value right to prove their case by leading evidence. This right can't be taken away by the Court save otherwise in case of their failure to do so and such failure was required to be recorded in the order leading to the closure of evidence. It is only then that the Court can proceed to decide the suit after doing away with the evidence of parties. This right can't be taken away by the Court save otherwise in case of their failure to do so and such failure was required to be recorded in the order leading to the closure of evidence. It is only then that the Court can proceed to decide the suit after doing away with the evidence of parties. The Court, by no stretch of imagination, therefore, could decide the suit straightway without affording the parties a chance to lead the evidence and discarding their evidence. It is not that the Court is powerless to decide a suit without evidence. It enjoys this power where a claim is admitted under Order 12, Rule 6, CPC. In the present case, there was nothing in the impugned order to show that Court had granted Appellant time to lead evidence or that he had defaulted. It may as well be that appellant was guilty of prolonging the proceedings and delaying the decision of the suit but that was required to be reflected and dealt with in the order to suggest that his evidence required to be closed and the suit required to be decided without evidence. The impugned order is bereft of all this and, therefore, does not satisfy the requirements of Order 17, Rule 3. It can't also be sustained in reference to any other provision." (f) In the decision K.J.Sebastian Jayaseelan V. Revathi Enterprises, 2001 A I H C 1165 at page 1166, in paragraph 5, it is laid down as follows: "5. ... The explanation to Rule 2 gives a discretion to the Court to proceed under Rule 3 even if a party is absent; but that discretion is applicable only in cases where a party who is absent has led some evidence or has adduced substantial part of his evidence. If on a date fixed, one of the parties remain absent and for that party no evidence is adduced up to that date, the Court will have no option but to proceed to dispose of the matter in accordance with Order 17, Rule 2 i.e., in any of the modes prescribed under Order 9 of the CPC. Considering the fact that on the date when the evidence of defendant was closed nobody appeared for the defendant. Considering the fact that on the date when the evidence of defendant was closed nobody appeared for the defendant. The Hon'ble Supreme Court held that the disposal can be taken as under Order 17, Rule 2 and an application under Order 9, Rule 13 would be maintainable." (g) In the decision of this Court in Sri.Mahaveer Waste Factory and others V. Swadeshi Cotton Mills and others, 1996 A I H C 1746, at page 1747, in paragraph 5, it is held as follows: "5. The same view has been expressed by a learned Single Judge of this Court in the case of V. Ramakrishnan v. K. Raju 1990 (2) M.L.J. 64. The learned Judge has observed that as per Rule 2 of Order 17, Civil Procedure Code if the parties or any of them fail to appear, the court may produced to dispose of the suit in one of the modes directed in that behalf by Order 9 of make such order as it thinks fit. The expression 'such other order as it thinks fit' does not mean that the court can decide the case on merits. This decision has also held that in cases where one of the parties do not appear on the date of hearing and let in evidence, the court can dispose the matter, invoking the provisions of Order 9 and not Order 17 C.P.C, When we consider the case on hand in the light of these decisions, we have to necessarily come to the conclusion that the Judgment and decree passed by the trial court under Order 17, Rule 3, C.P.C., on the ground that the defendants have failed to let in evidence on the date fixed for the evidence of the defendants cannot be sustained and appeal has to be allowed - but that does not mean that the suit is to be dismissed. I am of the opinion that the Judgment and decree of the trial court has to be set aside and the matter has to be remitted to the trial court for fresh disposal according to law, after giving opportunity to both sides to let in any further evidence, they may deem fit." 28. I am of the opinion that the Judgment and decree of the trial court has to be set aside and the matter has to be remitted to the trial court for fresh disposal according to law, after giving opportunity to both sides to let in any further evidence, they may deem fit." 28. That apart, this Court, to prevent an aberration of justice, cites the following decisions: (a) In the decision of this Court in Corporation of Bank V. M/s. E.W. Stevenson and 2 others, 1993-2-L.W.-287 (D.B.), it is observed as follows: "This appeal was preferred against an order allowing an application for setting aside an exparte decree in a suit filed on the original side of the High Court. The trial Court held that sufficient reason was shown for the absence of counsel of the defendants due to illness. It was contended for appellant herein (plaintiff) that trial Court erred in setting aside the exparte decree as against defendants 2 and 3 also, because the 1st defendant alone was represented in the proceeding for setting aside the exparte decree and representative of the 1st defendant alone had filed the affidavit in the said application." Further, in the aforesaid decision, it is held as follows: "It is seen from the facts of the case leading to the money decree that the first defendant was alleged to be the principal debtor and the second and third defendants are the sureties. The effect of setting aside the decree against the first defendant alone will mean that a decree made effective against all the defendants jointly will stand annulled in so far as the principal debtor is concerned, but shall bind the sureties, and the creditor-decree holder thus shall satisfy the decree. Applying the first Proviso to O.9, R.13, it is indeed a case in which even if the decree has to be set aside at the instance of only one of the defendants, it must be set aside against all of them." (b) In the decision of this Court in M.Radheshyamlal V. Shailesh, AIR 2005 Madras 93, it is held that 'An order of Court in allowing the application to set aside exparte decree is not an appealable one'. Further, it is observed that 'Order 43 Rule 1(d) of Civil Procedure Code permits appeal only against the order of rejection by a Court to set aside exparte decree'. Further, it is observed that 'Order 43 Rule 1(d) of Civil Procedure Code permits appeal only against the order of rejection by a Court to set aside exparte decree'. (c) In the decision V.Ramakrishnan V. K.Raju, 1990-1-M.L.J.64 at page 65, it is held thus: "As per Rule 2 of Order 17, Civil Procedure Code if 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 9 or make such order as it thinks fit. The expression 'such other order as it thinks fit' does not mean that the court can decide the case on merits. It only means that the court may proceed to adjourn the case to some other date or pass any such order. If the legislature meant that by the said expression, the court can decide the suit on merits, it would have said so explicitly as it has stated in Rule 3(a) that if the parties are present, the court may proceed to decide the suit. Hence it follows that the only course the court should have followed is to dispose of the suit in any one of the modes directed in that behalf by Order 9. Rule 6 of Order 9 relates to the procedure to be followed where the plaintiff appears and the defendant does not appear. In such a case, the Court may make an order that the suit shall be heard ex parte. Therefore, in the present case, when neither the defendant nor his legal counsel was present on the adjourned date, the defendant should have been set ex parte and then the suit be proceeded with." 29. In this connection, this Court relevantly points out the decision in Smt.Gulab Devi V. Premwati, AIR 1996 Allahabad 22 at page 23 & 24, wherein in paragraph 9 it is observed as follows: "9. Admittedly, on 19-4-80, only the plaintiff and his counsel were present. The defendants' counsel withdrew after his application for adjournment was rejected. That is why the court proceeded without hearing the defendants. For warranting the application under Order 17, Rule 3, C.P.C., it was essential that the court could proceed only when the parties were present, meaning thereby, all the parties to the suit. The defendants' counsel withdrew after his application for adjournment was rejected. That is why the court proceeded without hearing the defendants. For warranting the application under Order 17, Rule 3, C.P.C., it was essential that the court could proceed only when the parties were present, meaning thereby, all the parties to the suit. Otherwise if the parties were not present, the court could proceed under O. 17, R. 2, C.P.C. only. In this case, the order sheet of the learned lower court shows that the counsel for defendant No. 7 Smt. Gulab Devi, Sri Udai Shankar Verma withdrew from the proceedings after the application for adjournment was dismissed by the learned lower court. So he was not present in the court as required by this provision of Order 17, Rule 3(a). So the court had no other option left but to proceed under Order 17, Rule 2, C.P.C. This way, the learned lower court has erred clearly in proceeding under Order 17, Rule 3(1 A), C.P.C. The order is not on merits nor it could be so. It is clearly thus an ex parte order and unnecessarily purporting to be under Order 17, Rule 3, C.P.C." 30. Also, in the decision B.Janakiramaiah Chetty V. A.K.Parthasarathi and another, 2002 A I H C 2022 at page 2023 wherein it is held thus: "A reading of the definitions of "judgment" and "decree" indicates that there shall be a formal expression of adjudication of the dispute, which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. In a case where evidence or specific portion of the evidence of the parties is recorded, and if any party fails to appear on the day on which the suit was posted, the Court, may in its discretion, proceed with the case as if the party was present. In other words, if the Court wants to proceed with the case as if the defendant is present, it has to follow the procedure prescribed under R.3(a), i.e., it has to proceed with the suit and decide the same on merits. From the above, it is seen that discretion is given to the Court either to proceed with the case as if the party is present and decide the suit on merits or set him/her ex parte and pass an ex parte judgment. From the above, it is seen that discretion is given to the Court either to proceed with the case as if the party is present and decide the suit on merits or set him/her ex parte and pass an ex parte judgment. The law is well settled on this proposition that the plaintiff has to succeed or fail on the pleadings and the evidence adduced by him. Admittedly, the impugned judgment does not discuss either the pleadings or the evidence that was led in support of the plea of the petitioner. The suit was simply allowed. The word ex parte is not used. The judgment is to be treated only as an ex parte judgment within the four corners of the ex parte decree. Therefore, the application under O.9 R.13 to set aside the decree is maintainable." 31. As far as the present case is concerned, it is evidenced from the Notes Paper in O.S.No.816 of 1999 on the file of the trial Court that on 31.12.2009, the Learned Sub Judge has recorded the following: "Batta not paid and D1 called absent and No representation and D1 side evidence closed. For D2 side evidence by 5.1.2010." Further, on 05.1.2010, the Notes paper contains the following endorsement: "D2 side evidence. D2 called absent. No representation and D2 side evidence closed. For both sides arguments by 18.1.2010." On 18.1.2010, it is recorded as under: "I.A.No.1 of 2010 is pending. Call on 20.1.2010." On 20.1.2010, the Judges Notes Paper in O.S.No.816 of 1999 bears the following endorsement: "I.A.No.1/2010 is dismissed today. Heard for Judgment by 21.1.2010". On 21.1.2010, the Judgment in the main suit O.S.No.816/1999 has been delivered. 32. A closer scrutiny of the preamble portion of the Judgment delivered by the trial Court in O.S.No.816 of 1999 dated 21.01.2010 unerringly point out that arguments of Advocate on the side of Plaintiff, arguments of 1st Defendant Advocate and 2nd Defendant's Advocate arguments were heard. Significantly, in the Notes Paper in O.S.No.816 of 1999 after the dismissal of I.A.No.1 of 2010 on 20.01.2010 it is noted as 'Heard for Judgment by 21.01.2010'. The trial Judge has not noted expressly that he has heard the arguments of respective sides (viz., the Plaintiff and the Defendants). Significantly, in the Notes Paper in O.S.No.816 of 1999 after the dismissal of I.A.No.1 of 2010 on 20.01.2010 it is noted as 'Heard for Judgment by 21.01.2010'. The trial Judge has not noted expressly that he has heard the arguments of respective sides (viz., the Plaintiff and the Defendants). Under these circumstances, the point that arises for rumination is: whether the Judgment delivered in O.S.No.816 of 1999 dated 21.01.2010 by the trial Court is an Ex parte one or the same is passed on merits?. 33. At the risk of repetition, this Court relevantly points out that in the affidavit in I.A.No.4 of 2010 [filed by the 1st Defendant as Petitioner (Respondent in CRP.1383/2010)] in paragraph 8, it is categorically averred that 'An exparte Judgment was passed on 21.01.2010 without giving him sufficient opportunity to examine Handwriting Expert and without hearing any arguments on his side. Likewise, the Petitioner/2nd Defendant (Respondent in CRP.No.1382/ 2010) in I.A.No.5 of 2010 has averred in paragraph 4, to the effect that 'But this Hon'ble Court dismissed the application filed by the 1st defendant on 21.01.2010 and without hearing the arguments decreed the suit on 22.01.2010.' Both the Respondents (in CRPs)/Defendants 1 and 2 have taken a candid plea that 'without hearing arguments on their side, the trial Court passed a Judgment in the main suit on 21.01.2010. As a matter of fact, there is no endorsement in the suit Notes Paper on 20.01.2010 (when I.A.No.1/2010 has been dismissed on that day) that the suit has been heard, after hearing arguments of the respective contesting parties. The simpliciter endorsement in the Notes Paper on 20.01.2010 reads only 'Heard. For Judgment by 21.1.2010' (notwithstanding the recording of dismissal of I.A.No.1/2010). while passing the orders in I.A.Nos.4 and 5 of 2010 in O.S.No.816 of 1999 dated 22.02.2010, the trial Court has not either denied or repudiated in categorical terms (and that too in expression fashion) the claim of the Defendants 1 and 2 (Respondents in Revision Petitions) that without hearing arguments on their side, the Judgment in the suit was delivered on 21.01.2010. Instead, it mentioned in I.A.No.4 of 2010 at paragraph 7 that for the averments made by the Respondents/Defendants 1 and 2, no objection endorsement has been made on the side of the Revision Petitioner/Plaintiff. Based on the same, the trial Court has allowed I.A.No.4 of 2010. Instead, it mentioned in I.A.No.4 of 2010 at paragraph 7 that for the averments made by the Respondents/Defendants 1 and 2, no objection endorsement has been made on the side of the Revision Petitioner/Plaintiff. Based on the same, the trial Court has allowed I.A.No.4 of 2010. Insofar as I.A.No.5 of 2010 (filed by the 2nd Defendant/Respondent in CRP.1382/2010) is concerned, the trial Court while passing the impugned order on 22.02.2010 has only, inter alia, observed that 'based on the documents already received by the Court without providing an opportunity, in the main suit, the evidence on the side of Defendant has been closed and Judgment has been delivered and as such, it could not be considered that in the main suit Judgment has been pronounced on merits. Viewed in that perspective, it has allowed I.A.No.5 of 2010 without costs. 34. On a careful consideration of respective contentions and also taking note of the entire conspectus of the facts and attendant circumstances of the case in an integral fashion, this Court comes to an inevitable conclusion that the trial Court has delivered the Judgment on 21.01.2010 without hearing the arguments of the Defendants 1 and 2 (Respondents in both CRPs) and in such an event, the Judgment dated 22.02.2010 rendered by the trial Court, in the eye of law, is to be construed only as 'Ex parte' (although the term 'Ex parte' has not been mentioned anywhere in the preamble portion of the Judgment or in the notings of the Notes Paper dated 20.01.2010, when the suit has been posted for Judgment on 21.01.2010. Looking at from that angle, this Court holds that I.A.Nos.4 and 5 of 2010 in O.S.No.816 of 1999 filed by the Respondents/Defendants 1 and 2 under Order 9 Rule 13 of Civil Procedure Code before the trial Court are perfectly maintainable in law. As a logical corollary, this Court opines that the Judgment delivered by the trial Court on 21.01.2010 in the main suit without hearing the arguments of Defendants 1 and 2 attract the case only under Order 17 Rule 2 of Civil Procedure Code. Even on that count, I.A.Nos.4 and 5 of 2010 in O.S.No.816 of 1999 filed by the Defendants 1 and 2 (Respondents in both CRPs) before the trial Court are legal and the same cannot be found fault with in any manner. Even on that count, I.A.Nos.4 and 5 of 2010 in O.S.No.816 of 1999 filed by the Defendants 1 and 2 (Respondents in both CRPs) before the trial Court are legal and the same cannot be found fault with in any manner. In any event, in view of the fact that the trial Court has allowed I.A.No.4 of 2010 in O.S.No.816 of 1999 on 22.02.2010 based on no objection endorsement made by the Learned Counsel for the Revision Petitioner/Plaintiff, this Court does not find any infirmity in the order passed by the trial Court in allowing the said I.A.No.4 of 2010. Likewise, the conclusions arrived at by the trial Court in I.A.No.5 of 2010, to the effect that at the same time, without considering the documents received and not providing an opportunity to the Defendant, the evidence has been closed and the Judgment has been delivered and therefore, it could not be construed as 'The Judgment on merits', do not suffer from any impropriety material irregularity or illegality in the eye of law, as opined by this Court. Consequently, the Civil Revision Petitions fail. 35. In the result, the Civil Revision Petitions are dismissed, leaving the parties to bear their own costs. The Orders passed by the trial Court in I.A.Nos.4 and 5 of 2010 in O.S.No.816 of 1999 dated 22.02.2010 are confirmed by this Court for the reasons assigned in these Revision Petitions. Consequently, connected Miscellaneous Petitions are also dismissed. Since the main suit is of the year 1999 and nearly 14 years have rolled by now [which of course compels this Court's mind to indulge in redolent and reminiscence of old adage that 'A Homo-Sapien Litigant is mortal but the Litigation is immortal'], and therefore, to prevent an aberration of Justice, this Court, based on Good Conscience and Equity, directs the trial Court to dispose of the main suit O.S.No.816 of 1999 pending on its file, within a period of three months from the date of receipt of copy of this order. The trial Court is to bear in mind that 'hearing' means commencement of hearing on each day as per the decision of this Court in Arunachallam Chettiar V. Sivalingam Chettiar, AIR 1927 Madras 799 and to dispose of the main suit within the time schedule determined by this Court avoiding unnecessary adjournments. The trial Court is to bear in mind that 'hearing' means commencement of hearing on each day as per the decision of this Court in Arunachallam Chettiar V. Sivalingam Chettiar, AIR 1927 Madras 799 and to dispose of the main suit within the time schedule determined by this Court avoiding unnecessary adjournments. Further, the respective parties are directed to lend their unstinted and assistance to the trial Court in regard to the completion of proceedings in the main suit. Before parting, this Court aptly points out that 'By the hearing of the suit is meant the hearing at which the Judge would be either taking evidence or hearing arguments or would have to consider questions relating to the determination of the suit which would enable him finally to come to an adjudication upon it' as per the decision in Manohar Dass V. Birandari Sheikhupurain, AIR 1936 Lahore 280.