1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.32 OF 2009 WITH CIVIL APPLICATION NO.129 OF 2009 Mr. Dattu Bajirao Mithe & ors ...... Appellants vs. Shri Nivrutti Raghunath Mithe ..... Respondent Mr. G.R. Agrawal, Advocate for appellants. None for respondent. CORAM : C.L. Pangarkar, J. DATED : 20th January, 2010. PC : 1. This Second Appeal is filed by the original defendant being aggrieved by the decree passed against him. 2. The facts giving rise to the appeal are as follows : The respondent had instituted a suit claiming that he was owner and in possession of suit land gat no. 19 to the extent of 0.51R situate at village Palkhed-Bandhara, Tal. Dindori, District Nashik. It was alleged by him that the defendant-appellant had made an encroachment on his land and same needs to be removed and he needs to be put back in his possession. 2 3. The defendant though served with the summons, did not appear before the Court. 4. The learned Judge of the trial Court recorded the evidence and found that plaintiff had made out a case that the defendant had made an encroachment and holding so, he passed decree in favour of the plaintiff-respondent. The defendant-appellant preferred an appeal before the learned District Judge. The learned Additional District Judge heard the appeal, recorded the findings on the issues as to ownership of the plaintiff and found that the defendant had made an encroachment. He found that the appellant-defendant could not be heard on merits, as he had not availed the remedy of Order 9, Rule 13 C.P.C. for setting aside the decree holding so, he dismissed the appeal. 5. The learned counsel for the appellants submits before me that the person against whom the exparte decree is passed, has two remedies, one to file an appeal and another to file an application for setting aside exparte decree in terms of Order 9, Rule 13 of C.P.C. He submits that whenever an appeal is preferred under Section 96, the Court is bound to hear the defendant and the defendant can show on the basis of evidence available on record that the decree could not have been 3 passed against him. It was submitted by the learned counsel that therefore the Court was in fact bound to hear the defendant-appellant and decide the appeal on merits itself. He brought to my notice the observations of the learned Judge of the first Appellate Court, where he observed that the present appellant cannot be heard on merits or on the grounds raised in the Appeal Memo in as much as he had not availed the remedy, as alleged. The observation of the appellate Court is patently illegal and improper. The Supreme Court in the case of Bhanu Kumar Jain vs. Archana Kumar and another reported in AIR 2005 SUPREME COURT SCW 270 makes a following observations : The dichotomy can be resolved by holding that “ whereas the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for exparte hearing by the trial Court and/or existence of a sufficient case for non- appearance of the defendant before it, it would be open to him to argue in the First Appeal filed by him under S.96(2) of the Code on the merit of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. Lack of jurisdiction of the Court can also be a possible plea in such an appeal .” 4 6. It is clear from the observations made by the Supreme Court that the defendant can file an appeal against an exparte decree and can agitate all grounds available to the appellant, which he can legitimately raise. It is also clear that the Court is bound to consider all the grounds and decide the appeal on merits, if no prayer for remand is made. In the instant case, the learned Judge of the first Appellate Court certainly fell in error in observing that the appellant-defendant could not be heard on merits. In the circumstances, the judgment and decree passed by the appellate Court is set aside and the matter shall stands remanded to the first appellate Court for fresh decision in the matter. The first appellant Court shall now hear the appeal and decide the same on merits and shall allow the appellant to urge all those points which are available on merits. No order as to costs. 7. In view of disposal of the Second Appeal, the Civil Application No.129 of 2009 does not survive, the same is accordingly disposed of. (C.L. Pangarkar. J.)