- (1.) Heard learned counsel for the appellants.
(2.) In this F. A. F. O., order dated October 7, 1996, rejecting the application made by the appellants under Order 9, Rule 13 of the Civil Procedure Code, 1908, read with Section 151 of the Civil Procedure Code, 1908, has been impugned.
(3.) Learned counsel for the appellants submits that the court below wrongly exercised the discretion vested in it under Order 17, Rule 2 of the Civil Procedure Code, 1908. The suit was filed by the Central Bank against the appellants for recovery of the amount of loan. It is stated by counsel for the appellants that the evidence between the parties was over and then May 29, 1995, was fixed for arguments. On that date neither the appellants nor their counsel put in appearance and then the court below decided the suit on merits. Order 17, Rule 2 and the Explanation thereto runs as follows : "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." The Allahabad High Court by virtue of amendment added the following to Rule 2 : "Where the evidence, or a substantial portion of the evidence, of any party has already been recorded and such party fails to appear on such day, the court may in its discretion proceed with the case as if such party were present, and may dispose of it on the merits.";