JUDGMENT : Jyotirmay Bhattacharya, J. This first appeal is directed against the judgement and decree passed by the Learned Judge on 16th May, 2011 in Title Suit No. 951 of 2011 at the instance of the defendant No.3/appellant. 2. By the said decree, a declaration was given in favour of the plaintiff to the effect that the plaintiff is the rightful owner of the bonus share of the defendant No.2 as described in the schedule 'B' of the plaint. A decree for permanent injunction was also given in favour of the plaintiff and thereby restrained the defendant No.2 from transferring the suit shares and/or dealing with bonus share. 3. Challenging the said judgement and decree, another appeal has also been filed by the defendant No.1 The said appeal is registered as FA 10 of 2013. Since both the appeals arise out of a common judgement and decree and the parties to these appeals are identical, we have decided to hear both the appeals simultaneously to avoid conflict of decision. 4. Let us now consider the merit of both the appeals hereunder. 5. These are the appeals which in our view, can be decided only on the point of law without even considering the factual aspects. 6. The plaintiff filed the suit for declaration and injunction against the defendants. The dispute between the parties relates to the rival claims of the plaintiff and the defendant No.3 with regard to their ownership in respect of the suit shares. The defendant No.3 was contesting the said suit by filing written statement claiming that they have become the owner of the bonus share by virtue of their purchase from the plaintiff. The defendant No.1 also filed written statement supporting the claim of the defendant No.3. The plaintiff adduced evidence in the said suit. Examination-in-chief was filed on affidavit by the plaintiff. The said witness was also cross-examined by the defendants. The defendant No.3 also submitted evidence in chief on affidavit. The defendant's said witness being DW1 was cross-examined in part by the plaintiff. Some questions were also put to the said witness by the Court and the said witness answered those questions. The said witness was directed to appear again on 2nd May, 2011 for his further cross-examination. On 2nd May, 2011, the said witness did not appear in Court. 7. Some questions were also put to the said witness by the Court and the said witness answered those questions. The said witness was directed to appear again on 2nd May, 2011 for his further cross-examination. On 2nd May, 2011, the said witness did not appear in Court. 7. As a result, the evidence of the said witness was closed on that date. Subsequently, the learned Trial Judge by an order dated 2nd June, 2011 expunged the evidence of the DW 3 as the said witness, according to the learned Trial Judge, intentionally stayed away from giving further evidence. Thereafter, the suit was fixed for hearing. 8. While delivering the judgement, the learned Trial Judge did not consider the evidence of the DW 1 as his evidence was expunged by the learned Trial Court. Thus, on the basis of the pleadings of the parties and also the evidence of the plaintiff, the learned Trial Judge ultimately decided the said suit and decreed the suit in favour of the plaintiff. 9. The legality of the said decree is under challenge in this appeal. 10. The merit of the appeal practically depends upon the legality of the order expunging the evidence of the DW 1. If it is held that the learned Trial Judge was justified in expunging the evidence of the DW 1 in the facts of the instant case, then this appeal is required to be considered on merit. On the contrary, if it is found that the learned Trial Judge was not justified in expunging the evidence of the DW 1, then the only consequences is to set aside, the judgement and decree impugned in this appeal and to give further opportunity to the DW 1 to appear before the Court so that the cross-examination of the said witness can be completed by the plaintiff. 11. The present problem can be set at rest with reference to the provision contained in Order 17 Rule 2 read with Order 17 Rule 3 of the Code of Civil Procedure. The explanation which is added to Order 17 Rule 2 is very much significant in the instant case. 12. 11. The present problem can be set at rest with reference to the provision contained in Order 17 Rule 2 read with Order 17 Rule 3 of the Code of Civil Procedure. The explanation which is added to Order 17 Rule 2 is very much significant in the instant case. 12. The Order 17 Rule 2 provides that 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 9 or make such other order as it thinks fit. 13. The explanation added to the said provision runs as follows:- "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." 14. Thus, when evidence of the DW 1 was on record, the Court had to consider as to whether the evidence which was on record from the side of the defendant, was sufficient enough to dispose of the suit on merit even in the absence of the said defendant. If the evidence on record of the defendant is sufficient to consider the said suit on merit, the Court has to dispose of the said suit on merit even in the absence of the defendant. 15. This is not a case where the defendant after delivering the evidence-in-chief on affidavit, avoided facing the dock to avoid facing cross-examination by the adversary. Had it been a case that the said witness avoided facing cross-examination, in that event, the evidence-in-chief on affidavit which was delivered by him in the suit, could not have been read as an evidence in the suit. 16. Under such circumstances, the evidence of the DW 1 could have been expunged and/or ignored. Had it been a case that the said witness avoided facing cross-examination, in that event, the evidence-in-chief on affidavit which was delivered by him in the suit, could not have been read as an evidence in the suit. 16. Under such circumstances, the evidence of the DW 1 could have been expunged and/or ignored. But since the said witness of the defendant faced cross-examination on repeated occasions and substantial evidence was already on record, we are of the view, the learned Trial Judge ought not to have proceed with, to dispose of the suit by taking into consideration the evidence of the plaintiff alone without considering the evidence of the defendant which was on record from the side even in the absence of the defendant. 17. Such course was not followed by the learned Trial Judge. On the contrary, the learned Trial Judge proceeded with the suit by ignoring the evidence of the DW 1, which was already on record. This in our view, is contrary to the provision of Order 17 Rule 2 of the Civil Procedure Code. 18. We thus, set aside the judgement and decree passed by the learned Trial Judge and direct the learned Trial Judge to dispose of the said suit on merit after giving the defendant No.3 an opportunity to give further evidence in the suit. The DW 1 is thus, directed to make himself present in Court on the date to be fixed by the learned Trial Court for facing further cross-examination by the plaintiff. 19. It is made clear that in the event the defendant wants to examine any further witness apart from DW 1, the defendant will have to submit a list of witnesses before the learned Trial Judge and those witnesses may be permitted to be examined on behalf of the defendant, with this rider that the defendant will have to make all endeavour to complete examination of his witnesses as early as possible preferably within six months from date. 20. Needless to mention here that if other witnesses are examined by the defendant, the plaintiff will be given reasonable opportunity to cross-examination those witnesses. 21. Parties are directed to maintain status quo with regard to transfer of the bonus shares as on today till the disposal of the suit. 22. Both these appeals and application are thus, disposed of. 23. Needless to mention here that if other witnesses are examined by the defendant, the plaintiff will be given reasonable opportunity to cross-examination those witnesses. 21. Parties are directed to maintain status quo with regard to transfer of the bonus shares as on today till the disposal of the suit. 22. Both these appeals and application are thus, disposed of. 23. Let the lower Court records be sent down to the Court below immediately. 24. Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocate for the appellant immediately.