1 S.B.CIVIL MISC. APPEAL NO.215/1996 LRs.of Dayashankar v. Ganpat Lal & Ors. Date of Judgment :: 11th February, 2008 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. R.R.Nagori, for the appellants. Mr. S.N.Trivedi, for the respondents. .... To assail validity of the judgment dated 1.8.1995 passed by learned Civil Judge (SD), Pali, this misc. appeal is preferred. Brief facts for present purpose are that the plaintiff appellant preferred a suit for eviction from rented premises and also for recovery of due rent against defendants Ganpatlal and Kanhaiyalal. On 11.12.1987, the trial court recorded statements of plaintiff Dayashankar in rebuttal and also closed the evidence in rebuttal by defendants in absence of their counsel. The matter then was fixed for hearing. By judgment dated 31.8.1999 the suit was accepted and a decree for eviction from the premises rented and recovery of rent was granted in favour of the plaintiff. The appeal giving challenge to the judgment and decree dated 31.8.1999 referred above came to be accepted by judgment impugned. Learned 2 appellate court held that the trial court erred while closing the rebuttal evidence by the defendants on 11.12.1987 and thus remanded the matter for fresh adjudication with a direction to provide an opportunity of cross examination of plaintiff Dayashankar to the defendants. The appellate court by an another order dated 11.9.1995, while accepting in part a review petition preferred by the plaintiff, modified the order dated 1.8.1995 in the terms that the trial court shall examine admissibility of the statements of Dayashankar instead of permitting the defendants to cross examine him. The modification aforesaid was made in view of the fact that plaintiff Dayashankar died during pendency of the appeal. In the present appeal the only argument advanced by counsel for the appellant is that the trial court on 11.12.1987 proceeded exparte against the defendant respondents, no effort thereafter was made by them to get the exparte judgment and decree set aside, thus, the appellate court should have decided the appeal on merits instead of remanding the suit for fresh adjudication. To substantiate the argument, reliance is placed upon a Single Bench judgment of this Court in the case of Berisal Singh v. Pemchand, reported in 1953 RLW 473, holding therein that “if the defendant does not apply for setting aside the exparte decree, and files an appeal against the decision given against him, he cannot ask for a 3 remand on the ground that summons was not duly served, but his grounds of appeal would be limited to the questions of law or facts which are already on record”. I have heard counsel for the parties and examined the record including the judgment impugned. At the threshold it is relevant to note that in the instant matter no order was passed to proceed exparte against the defendant respondents by the trial court. The trial court on 11.12.1987 after recording statements of Dayashankar in rebuttal closed the cross examination by the defendants and fixed the suit for hearing. The suit ultimately came to be decided in the year 1989. As suggested by counsel for the appellant, I do not find available to the appellant, the remedy to get the decree set aside as per the provisions of Order IX Rule 13 Code of Civil Procedure, as no decree was passed exparte against the defendants. As a matter of fact the trial court on 11.12.1987 without affording any opportunity for cross examination to the defendants fixed the suit for hearing. The suit was heard and decided in presence of the defendants. The first appellate court found that the trial court should have not proceeded to close the evidence in absence of counsel for the defendants and to proceed further. I do not find any error in that, as on the same day statements of Shri Dayashankar in rebuttal 4 were recorded. The appropriate course available was to provide an opportunity of cross examination of Dayashankar to the defendants. The reliance placed by counsel for the appellant upon the judgment of this Court in the case of Berisal Singh (supra) is having no application in present case as in the case aforesaid there was no allegation about any illegality during the trial, however, it was urged that the notice issued by the first appellate court was not served upon the defendants and, therefore, a prayer was made before this Court during adjudication of second appeal to remand the appeal to first appellate court for fresh adjudication. This Court held that no such remand is permissible as the appellants could have approached the appellate court for setting aside the exparte judgment by moving application as per provision of Order XXXXI Rule 21 Code of Civil Procedure. In the instant matter the allegation is regarding an illegality occurred during the trial and it was open to raise such contention before the appellate court by the defendant appellants in view of the provisions of Section 105 Code of Civil Procedure. For the reasons mentioned above, I do not find any force in this appeal and, thus, the same is dismissed. ( GOVIND MATHUR ),J. Kkm/ps.