The main legal point established in the judgment is the distinction between a judgment on the merits falling under O.17 R.3 and a disposal under O.17 R.2, as well as the impact of the amendments and the court's discretion in proceeding with the case.

1. O.17 R.2 and 0.17 R.3 of the Code of Civil Procedure as they stand after the Civil Procedure Code Amendment Act, 104 of 1976 are materially different from the corresponding provisions as they stood prior to the amendment. 0.17 R.3 contemplated a judgment on the merits. But a judgment does not become a judgment on the merits falling under 0.17 R.3 merely because the judgment purports to be on the merits. The court may have, in the judgment discussed the issues in the case, considered the evidence and decided the case on the merits. But nevertheless it will not be a disposal under 0.17 R.3 if the prerequisite for application of the rule is not satisfied. The party to whom time has been granted must be in default. If the case comes up not after grant of such time to the party, 0.17 R.3 will have no application. The disposal will then be under 0.17 R.2 though it purports to be one on the merits. In such a case a defendant notwithstanding the purported disposal on the merits could seek to reopen the decree by an application under 0.9 R.13 of the CPC.

2. After the amendment in 1976 0.17 R.2 stands with an explanation added to it. That explanation reads:

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."

Order 17 R.3 also is amended. Prior to the amendment the court, notwithstanding the default of party, was entitled to proceed with the suit. But after the amendment it could decide to proceed with the suit under the rule only if the parties are present. If the parties are or any of them is absent the court would proceed only under R.2.

3. The above said amendment makes the earlier decisions on the distinction between 0.17 R.3 and 0.17 R.2 inapplicable after the amendment. The power of the court to proceed to decide the suit under 0.17 R.3 is restricted now to cases where the parties are present. If the parties are or any of them is absent the court would proceed only under R.2

4. There is another important change in the provisions which been noticed. It is not in all cases coming under R.2 of 0.17 that the court could proceed to dispose of the suit in the mode prescribed under 0.9 of the CPC. If the explanation is attracted the court would proceed to dispose of the suit as if the parties were present. The explanation would be attracted to a case 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 hearing of the suit is adjourned. The court has then a discretion to proceed with the case as if the party was present. If may in its discretion decide to proceed ex-parte. In a case where invoking the explanation, the court proceeds to deal with the case on the merits on finding that the conditions to attract the explanation are present, the disposal under 0.9. In such a case there is do question of reopening the decree by resort to 0.9 of CPC. In other words though the right to proceed to decide on the merits in case of default of appearance of party has been taken out of 0.17 R.3, it has been conferred in restricted cases by the explanation to 0.17 R.2. Where the court has chosen to proceed to decide on the merits under the explanation 0.9 cannot be invoked.

5. In the view that we have taken here it is not necessary to advert to the decisions in 1963 KLT. 320, 1963 KLT. 256,1964 KLT. 307 and 1969 KLT. 402 all of which have been cited by counsel in an attempt to show that merely because the decree purports to be on the merits it need not be taken to be so and 0.17 R.2 may be attracted nevertheless.

6. In the case before us a defendant who hotly contested the suit offered himself for examination. He was examined till the rising of the court on 17-1-1979 and his examination was to be conducted on the 18th