JUDGMENT 1. This is plaintiff's second appeal. 2. Plaintiff, appellant Chiranji Lal was posted as Station House Officer, G R.P. Bhilwara when he received suspension order dated 19/21.1.1960. Plaintiff also received a charge-sheet dated 30.1.1960 for an enquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. The plaintiff filed objections with regard to the charge-sheet that was served on him but with no result. Thereafter, the plaintiff received a show cause notice dated 19.4.1961 to show cause why he should not be dismissed from service. He submitted representation and filed a reply to the show cause notice. Ultimately, he was dismissed from service vide order dated 12.5.1961. The plaintiff-appellant filed a departmental appeal on 16.8. 1961 which was accepted and de novo enquiry was ordered. lnspite of this specific order, no opportunity was afforded to him and he was again dismissed vide order dated 27.11.1962. The appellant again preferred an appeal but the same was dismissed. The plaintiff appellant also filed a review petition under Rule 34 of the Rajasthan Civil Services (Classification Control and Appeal) Rules, 1958 (hereinafter referred to as the 'CCA Rules'), but that too was dismissed vide order dated 27.7.1970. Thereafter, the appellant made several representations to various authorities on several occasions. The last representation submitted to the Home Minister was dated 27.11.1978 . The appellant also met the Minister personally and he was assured that just and proper order will be passed on his memorandum and representation but he received no reply and hence, he filed the suit, out of which this appeal arises, on 26.9.1979. The suit was registered and notices were issued for service on the defendants. 3. Defendant No. I State of Rajasthan was served on 29. 10.1979 but the notice for Inspector General of Police was returned with the remarks that the person concerned to whom the notices were offered, stated that the notice should be addressed to correct name and Section but nobody was present on behalf of the State of Rajasthan on 30 11 1979, and notices for the I.G P. were awaited for 15.12 .1979 On 15 12.1979, also nobody appeared on behalf of defendant No. I State of Rajasthan. and ex-parte proceedings were taken. Since notice was not served on defendant No 2, the same was again issued. Notice to the I.G P was again sent by registered post. and ex-parte proceedings were taken. Since notice was not served on defendant No 2, the same was again issued. Notice to the I.G P was again sent by registered post. Since defendant No. 2 was served but still nobody was present on the next date i.e. 18.1.1980. therefore, ex-parte proceedings were taken against defendant No. 2 as well and the case was fixed or ex-parte proceedings on 26. 2.1980. The case was again adjourned to 9.4.1980, and there after, to 15.5.1980 and again for 11.7.1980 when the statement of PW-1 Chiranji Lal was recorded and the case was fixed for argument and judgment on 1.8.1980. Arguments were heard on 1.8.1980 and the case was fixed for judgment on 14.5.198O, it was again adjourned to 12.9.1980. Since the presiding Officer who heard the arguments had been transferred, thereafter case was again fixed for arguments. On that day on 12.9.80 Smt. Tara Arya filed an application for setting aside the ex-parte order and the next date fixed was 18.9.1980. Reply to that said application was filed on behalf of plaintiff and order on the said application for setting aside ex parte order was passed on 5.3.1981, and the defendants were allowed to participate in the proceedings at that stage. Arguments were thereafter heard and suit was decreed by the trial court vide its judgement dated 24.4.1981. 4. Defendants preferred an appeal before the Addl. District Judge No 4, Jaipur City who vide the judgment and decree dated 9.5.86 set aside the judgment and decree passed by the trial court and remanded the case back to the trial court for giving opportunity to the defendants to file written statement before 31.5.86 and directing the trial court to decide the main suit within six months. 5. It is against this judgment and decree dated 9.5 86, that the present second appeal has been filed. 6. Learned counsel for the appellant has very vehemently submitted that the defendants were utterly negligent and there was no sufficient cause for the absence of the defendants or their counsel and the first appellate court should not have set aside the ex-parte order. He has further submitted that Shri Sudeshpal Kashyap. Additional Superintendent of Police was appointed as the Officer Incharge for defending this case. by the Governor on 17.12.1919. He has further submitted that Shri Sudeshpal Kashyap. Additional Superintendent of Police was appointed as the Officer Incharge for defending this case. by the Governor on 17.12.1919. Though notices of the suit were served on the defendants, but inspite of this, nobody appeared before the trial court and the application which has been filed on 18.9 1980 for setting aside the ex.parte order is based on absolutely wrong and mis-leading facts. In the application dated 18.9.1980, it has been stated that no proper service was effected on the defendants. Therefore. the defendants had no knowledge, the State Government would have defended the case. It was further submitted in that application that it was on 12.9.80 when the case entitled Chiranjilal v. State to was called and the Government Pleader Smt. Tara Arya. who was present in the court in connection with some other case, came to know that ex-parse proceedings had been taken in the case against the State Govt and it was only on the information of Smt Tara Arya that an Officer Incharge was appointed. Thereafter, they moved an application for setting aside the ex parte order. This application dated 18.9.1980 was supported by an affidavit of Shri Swadesh Pal Kashyap who has sworn in the affidavit stating the facts mentioned in the application from para: 1 to 6 to be true to his knowledge and correct on the basis of record. He has also filed a memo of appearance on 18.9.1980 stating that he has been informed by telephone from the Police Headquarter that he had been appointed as Officer Incharge .in the case. Smt. Tara Arya also filed a memo of appearance stating that she had beer, appointed to appear on behalf of the State Government vide order dated 17.9.1980. She has also filed the original authority letter issued by the IGP Rajasthan and addressed to Shri Sudesh Pal Kashyap, Additional Superintendent of Police, Officer Incharge. 7. The case came up for admission before this court on 17.9.1986. After hearing learned counsel for the appellant, court was requested by learned counsel for the respondent to grant some time to ascertain as to when Shri Swadesh Pal Kashyap was appointed as Officer Incharge for the first time and when he came to know about his appointment for the first time. Time was granted. 8. After hearing learned counsel for the appellant, court was requested by learned counsel for the respondent to grant some time to ascertain as to when Shri Swadesh Pal Kashyap was appointed as Officer Incharge for the first time and when he came to know about his appointment for the first time. Time was granted. 8. Learned counsel for the respondents was asked if he could file an affidavit to the effect that Shri Sudesh Pal Kashyap, Additional Superintendent of Police was not appointed as Officer-Incharge by the Governor vide order dated 17.12.1979 or that Shri Sudesh Pal Kashyap did not receive the copy of the order dated 17.12.1979 but he was unable to file the affidavit and only submitted that he had been instructed to state that copy of the order dated 17.12.1979 was not received by Shri Sudesh Pal Kashyap, & that he was appointed as Officer lncharge by the Deputy Secretary to Government, only vide order dated 17.9.1980. The order dated 17.12.1979 was passed under the orders of the Governor & copy of the same was also sent to Shri Sudesh Pal Kashyap as also to the Inspector General of Police, The order dated 17.9.1980 which has been passed by the Deputy Secretary to Government of course, does not refer to the earlier order dated 17.12.1979. Since the counsel for the respondents has not dared to file an affidavit to the effect that the order dated 17.12.1979 was not passed or that a copy of the same was not received by Shri Sudesh Pal Kashyap, I am not going to believe the bald statement made by the respondents counsel that Shri Sudesh Pal Kashyap had no knowledge or was not aware or had not received the copy of the order dated 17.12.1979 appointing him as Officer Incharge . In that event, it is obvious that he was negligent in not appearing in court after 17.12.1979 and in not applying for setting aside the ex-parte order. Statement of PW-I Chiranji Lal was recorded as late on on 11.7.1980. If the Officer Incharge would have taken steps earlier for setting aside the exparte order, the case would not have proceeded further and ex-parte order might have been set aside and opportunity would have been given to the defendants to file the written statement, and to contest the suit. If the Officer Incharge would have taken steps earlier for setting aside the exparte order, the case would not have proceeded further and ex-parte order might have been set aside and opportunity would have been given to the defendants to file the written statement, and to contest the suit. But the respondents have been utterly negligent and no sufficient cause has, been shown by them for not appearing in court after 17.12.1979 till 12.9.1980 when Tara Arya counsel for the State of Rajasthan appeared and sought time to file an application for setting aside the ex-parte order. There is no affidavit of Smt. Tara Arya in support of the application that she came to know of the case or pendency of the case, and ex-parte proceedings having been taken on 12.9.1980 or that she informed about the same to the State Government and thereafter Shri Sudesh Pal Kashyap was appointed Officer Incharge nor there is any affidavit of the person to whom Smt. Tara Arya informed about the ex-parte order on 12.9.1980. Neither sufficient cause nor any convincing reasons have been mentioned in the application for setting aside the ex-parte order so as to grant indulgence to the State for getting the ex-parte order set aside. In my opinion learned trial court was justified in rejecting the application for setting aside the ex-parte order. In the present case the Officer Incharge suppressed the fact that he was earlier appointed as Officer Incharge vide order dated 17.12.1979, and this conduct of the Officer Incharge is sufficient to deny any grant of indulgence to the defendants. Moreover, the defendants have not explained or assigned any good cause for their previous non- appearance in court. 9. Learned counsel for the respondent has submitted that no second appeal lies in the circumstances of the case. He drew my attention to Order 43 Rule 1(u) Civil Procedure Code which provides that an appeal shall be from an order under Rule 23 or Rule 23-A of Order 41 remanding a case. Therefore, in any case, the present appeal is maintainable, whether u/s 100 Civil Procedure Code or under Order 43 Rule 1(u) Civil Procedure Code. Since limitation is also the same, it is immaterial whether the appeal is filed u/s 100 Civil Procedure Code or under Order 43 Rule 1 (u) C.P.C., since the impugned order is appealable. 10. Therefore, in any case, the present appeal is maintainable, whether u/s 100 Civil Procedure Code or under Order 43 Rule 1(u) Civil Procedure Code. Since limitation is also the same, it is immaterial whether the appeal is filed u/s 100 Civil Procedure Code or under Order 43 Rule 1 (u) C.P.C., since the impugned order is appealable. 10. Learned counsel for the respondents has also submitted that no prejudice or harm will be caused to the appellant in case the ex-parte order is set aside and a chance is given to the defendants to contest the suit. He also submitted that the suit is obviously time-barred and therefore, could not have been decreed in as much as the order of removal was dated 27-11-1962 and the review petition was also dismissed on 27-7-1970, whereas the suit had been filed on 26-9-79 after more than nine years. In this connection, he placed reliance on (1) Raghubir Jha V. State of Bihar and others, 1985 L.I.C. 1791 ; whereas on the other hand, learned counsel for the appellant has submitted that the impugned order dismissing the plaintiff is void ab-initio as it had been passed in violation of the principles of natural justice. In this connection he has placed reliance on (2) A. V. Venhateswaram V. Ram Chand Sobhraj Wadhwani A I.R. 1961 SC 1506 , with regard to the point of limitation, he has placed reliance on a decision of the Superme Court in (3) Madras Fort Trust V. Himanshu International, 1979 (1) SLR 757 , wherein their Lordships have observed that Government should not ordinarily take up a plea of limitation to defeat the just claim of citizens as also on another decision in (4) K. S. Upadhya V. State of Gujarat 1979 (I) SIR 767 Reliance was also placed on a latest decision of this court in (5) Union of India V. Mathura Das, 1986 (2) Judicial Surveyor 549 , wherein it has been observed as under, after relying on the case of Madras Port Trust (Supra) : "Both the courts below held that the claim of the plaintiff to the arrears of his salary is well founded. In such circumstances, it does not behave the Government and public authority to deny its employees their just claims by raising technical pleas like limitation though the court held the claim to be within limitation in this case as the cause of action arose when plaintiff received letters denying his claim". 11. I have gone through the record of the case as well and also written statement filed by the State Government which has been filed on 31-5-86 in the trial court after the order of remand. I think it will be difficult for the State to contest the suit on merits. It is apparent from the order dismissing the plaintiff appellant from service that no opportunity whatsoever was given to him to defend properly the charges levelled against him. It mentions that notice was sent to the defaulter Officer through the Superintendent of Police, Ajmer which was returned undelivered with the remarks that SI absent from Police Lines and his whereabouts were not known. A Special Messenger was sent to Jaipur to find out his where- abouts but he could not trace. Notice was then sent under Registered A.D. cover at his permanent home address but the same was also received back undelivered. 12. In this view of the matter, keeping in view the facts and circumstances of the case. I am inclined to allow this appeal with costs of all the courts throughout, the judgment and decree of the first appellate court are set aside and that of trial court are restored. Cost of the litigation will be recovered from Shri Sudesh Pal Kashyap, Additional Supdt. of Police (Officer Incharge).Appeal allowed with costs. *******