Anil K. Sen, J.:— This appeal from an original order is by the defendant. The order impugned is one dated April 11, 1981, passed by the learned Subordinate Judge, Asansol dismissing an appeal under Order 9 Rule 13 of the Code of Civil Procedure which was registered as Misc. Case No. 225 of 1980. It was so dismissed not on merits but on the ground that such an application is not maintainable. It will be necessary to refer to the facts which may be set out shortly as follows:

2. The respondent Abdul Gafur instituted Money Suit No. 18 of 1961 in the Court of the learned Subordinate Judge for recovery of a sum of Rs. 56,237.69 alleged to be the balance dues of the plaintiff for the works done for the defendant company. Though filed in the year 1961, the suit came up for peremptory hearing for the first time on March 28, 1978, when one of the plaintiffs witnesses being examined in part, the suit was adjourned till May 8, 1978. On the adjourned date, the suit was again adjourned in the absence of the presiding officer and the hearing was resumed on October 25, 1979 when the witness earlier examined in part was examined and cross-examined. After that the suit was adjourned to October 28, 1979, for further evidence. On that adjourned date, on the defendant's prayer the suit was adjourned till November 15, 1979. On November 15, 1979, on the defendant's prayer again, the suit was adjourned till November 20, 1979.

3. On November 20, 1979, the lawyer for the defendant informed the Court that he had no instructions. The defendant did not appear. The plaintiff appeared and examined another witness. On the evidence being closed, the learned Judge heard the argument on behalf of the plaintiff and on November 26, 1979, the judgment was delivered decreeing the plaintiffs suit for the amount claimed. In that background that defendant filed an application under Order 9, Rule 13 of the Code on August 26, 1980, and by the impugned order, the learned Subordinate Judge dismissed the said application as not maintainable only on the ground that the suit having been disposed of on its merits and not under O. 9 of the Code of Civil Procedure, the defendant had no remedy under O. 9, R. 13 of the Code. In the admitted facts, the learned Subordinate Judge has relied upon the judgment of a learned single Judge of this Court in the case of Lalit Chandra Das v. Sushil Chandra Guha, AIR 1980 Cal 148, which substantially supports the view taken by the learned Subordinate Judge.

4. In this appeal, Mr. Roychowdhury appearing on behalf of the appellant has strongly contended that in the admitted facts though the suit was decreed on the plaintiffs evidence it was so decreed ex parte against the defendant and must be deemed to have been so done under O. 9, R. 6 of the Code, so that the remedy for the defendant is under O. 9, R. 13 of the Code. The point thus urged by Mr. Roychowdhury has been strongly controverted by Mr. Ali who naturally places strong reliance on the aforesaid decision of this Court and the other decisions of this Court referred to therein.

5. The point thus raised is a point of law and the decision on the point is dependent upon interpretation of Rr. 2 and 3 of O. 17 of the Code. These two provisions have undergone material change by the amendment of 1976. Order 17, Rule 2 as amended reads as follows:—

“2. 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 O. 9 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.”

Similarly, R. 3 on amendment reads as follows:—

“3. 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;

(b) if the parties are, or any of them is, absent, proceed under R. 2.”

6. It may be noted that the 1976 Amendment has incorporated the explanation to R. 2 and has amended R. 3 to lay down separately what the Court is to do when the parties are present and when the parties are or any of them is absent.

7. On the terms of Rules 2 and 3 of O. 17 prior to their 1976 Amendment, there existed a sharp divergence of opinion amongst the different High Courts with regard to the scope and application of either of the two Rules, as aforesaid. While some High Courts took the view that these two Rules are mutually exclusive and independent, the others did not share the same view. This Court held that where there are no materials on record the Court should proceed under R. 2, whereas in a case where there are materials on record the Court should proceed under Rule 3. The Bombay High Court took a view somewhat similar to that of this Court. But the Madras High Court did not share the said view. According to the Madras High Court if a party is absent on the adjourned date, the Court can only proceed under R. 2 notwithstanding the fact that evidence had already been recorded at the instance of such a party at an earlier hearing. Different other High Courts followed either of these views or took somewhat distinct view of their own.

8. This existing divergence of judicial opinion resulting in material uncertainty as to the scope of these two Rules was the subject matter of consideration by the Law Commission in its 27th report (vide pages 164-170) in recommending the amendment ultimately adopted in 1976, for the purpose of removal of such uncertainty. After considering the different views expressed by the different High Courts the Commission proceeded to observe:

“Perhaps an approach to the matter would be clear, if two situations are kept apart, namely, plaintiffs absence and defendant's absence. In the former case, misunderstanding of the law to the effect that the Court is bound to dismiss the suit causes hardship. In such a case the position is that—

i) an adjournment can be granted;

ii) a decision on the merits in the plaintiff's favour could cause no grievance to any party. Question of hardship will arise only if a decision on merits is given against the plaintiff.

In the case of the defendant's absence,—

(a) an adjournment can be granted, or

(b) a decision subject to the setting aside procedure under O. 9, R. 13 would cause no grievance. A decision strictly on the merits in the sense that the remedy under O. 9, R. 13 is to be excluded, would cause hardship to the defendant”

The Commission then proceeded further to recommend:

“In view of the obscurity of tile present position, a clarification is considered desirable.

While a provision authorising the Court in every case to dispose of the suit as if the parties had appeared may be abused there is no harm, it is felt, if a limited power to do where the evidence of the defaulting party is substantially over, be inserted as in the Allahabad Amendment

Necessary change is proposed.”

9. In our considered opinion, the 1976 Amendment adopted on the recommendation of the Law Commission referred to hereinbefore overrides the view that the two Rules are mutually exclusive. Amendment to R. 3 now makes it clear that even in case of default within the meaning of R. 3 there can be no decision on merits unless both the parties are present. In the absence of both or either the Court is to fall back upon R. 2. R. 2 no doubt still authorises the Court “to dispose of the suit in one of the modes directed in that behalf by O. 9 or make such other order as it thinks fit.” But an explanation has been added to explain and guide what would be such other order. The guideline incorporated is that the party absent shall not be treated as absent but shall be deemed to be present if his evidence or the substantial portion of his evidence had already been recorded. It overrides those lines of cases where the view expressed was that notwithstanding the existence of substantial evidence on record adduced by the absenting party, the Court must dismiss the suit if he is the plaintiff or decree the same ex parte if he is the defendant. In a way the amendment adopted in part the Calcutta and the Bombay view as also the scheme introduced by the Allahabad High Court by that Court's amendment of O. 17, R. 2, in 1943. But in our opinion, the words “to make such other order”, can no longer be interpreted to mean that the Court would still be entitled to proceed under Rule 3 for the purpose of disposing of the suit on merits in such a way as to deny the remedy under Order 9, Rule 13 to the defendant where he was absent and had not adduced any evidence earlier. This cannot be the position because on the amendment of Rule 3, in such a situation the Court, is directed to fall back upon Rule 2 (vide Order 17, Rule 3(b)). The object of the amendment of Rule 3 by incorporation of two clauses prescribing different modes to be adopted in the two different situations was to override the view taken by some of the High Courts that where evidence or a substantial portion thereof had been recorded at an earlier hearing at the instance of the plaintiff, the Court is required to dispose of the suit on merits notwithstanding the absence of either of the parties in a way resulting in total exclusion of all remedies under Order 9 of the Code. Rule 3 now makes it clear that in the absence of the parties or either of them the Court is required to proceed under Rule 2 and the amended scheme of Rule 2 is that the Court will proceed to dispose of the suit treating that party to be present who has earlier adduced his own evidence or substantial part thereof. The explanation does not authorise the Court to dispose of the suit on merits against both in the sense that both would forfeit their right to any possible remedy under Order 9. It would be only so in respect of a party who by the deeming clause shall be deemed to be present. It is significant to note that on the terms of the explanation the Court can treat only that party to be present who had already adduced his evidence or a substantial part thereof prior to his default but not the other party who may as well be absent. The learned single Judge in the case of Lalit Chandra Das v. Sushil Chandra Guha, AIR 1980 Cal 148, unfortunately overlooked the above aspect of the amendment when he took the view that on the authority of the earlier decisions of this Court where the Court disposes of a suit in the absence of the defendant on evidence earlier adduced by the plaintiff and in the presence of the plaintiff it would be such a decision on merits as would exclude a remedy under Order 9, Rule 13 to the absenting defendant. He relied on the earlier Bench decision of this Court in the case of Tulsiram v. Sitaram but in that case the suit was disposed of in the presence of both the parties and on the evidence adduced in part by the plaintiff and in full by the defendant That apart there has been a material change in the scheme introduced by the 1976 Amendment the effect whereof we have considered hereinbefore and that effect was lost sight of by the learned single Judge in still following the earlier decisions on the point

10. In the result we uphold the contention of Mr. Roychowdhury that in the facts and circumstances of the present case, though the suit was disposed of on merits in favour of the plaintiff, it was so disposed of under the provision of Order 9, Rule 6 of the Code of Civil Procedure and not otherwise because in our opinion reading Rule 2 along with the explanation in the given situation the Court had no other alternative but to adopt the procedure under Order 9, Rule 6 of the Code. Hence, the application under Order 9, Rule 13 was quite maintainable and the learned Subordinate Judge went wrong in thinking that such an application is not maintainable. Since the merits have not been gone into by the learned Judge, we allow the appeal, set aside the order impugned and remand back the application for re-hearing on its merits.

11. No formal decree need be drawn up in this appeal.

Prabir Kumar Majumdar, J.:— I agree.

Appeal allowed.