Feeling aggrieved by the judgment and decree dt. 21.1.1997, passed in Civil Appeal No. 15A/96 of Vth Addl. Judge, to Distt. Judge, Morena, thereby, confirming judgment and decree dtd. 19.11.1992 passed in Civil Suit No. 106A/88 of Ist Civil Judge, Class I, Morena, appellant/defendant has filed this second appeal praying for setting aside the judgment and decree of both the Courts below. Plaintiff/respondent No. 1 to 4 had instituted the suit for eviction and arrears of rent against Shiv Singh Sharma and respondent No. 5, 6 and 7. During pendency of suit, defendant No.1 Shiv Singh Sharma expired and application to bring his legal representatives on record, was moved. The appellant as his legal representative, was found served on the basis of refusal of service. The learned trial Court after substituting LRs. on record proceeded ex-parte against appellant on the assumption of his service on the application for substitution as LRs. and decided the case on merits. Against the judgment and decree of the trial Court, appeal was also dismissed and the judgment and decree of trial Court was confirmed. This second appeal has been admitted on the following substantial question of law : "Whether, the Court can proceed ex-parte on a date when the case is not fixed for hearing." It is an admitted position that on 8.9.1988, the case was fixed for consideration of application under Order 22 Rule 4 of CPC when the case was made ex-parte against appellant for non-appearance in pursuant to notice, which was refused by him. This was issued to him on an application under Order 22 Rule 4 of CPC and was not meant for regular hearing of the case. However, after substituting LRs. on record, the learned trial Court, further proceeded ex-parte against appellant for deciding the case on merits. The learned counsel for the appellant has submitted that the learned trial Judge ought to have permitted plaintiff to amend the plaint and issued summons alongwith the copy of plaint to appellant for hearing the suit on merits as laid down in a decision of this Court in the case of Jaina Bai v. Kubhra Bai reported in 1980 (2) MPWN 40 , however, the learned appellate Court has distinguished this case on the ground that appellant had separately filed an application to set-aside the ex-parte order against him which was rejected by the trial Court. I am of the considered opinion that this controversy now has been finally settled by a Full Bench Decision of this Court, in the case of Archana Kumar v. Purendu Prakash reported in 2000 (2) JLJ 84 , wherein, it has been observed that order of rejection of an application under Order 9 Rule 13 of CPC can also be assailed in appeal on merits. In the circumstances, decision of the case on merits without proper notice to appellant is a nullity. For the reasons stated hereinabove, this appeal is allowed and the judgment and decree passed by both the Courts below are hereby set-aside. It is directed that the parties shall appear before the trial Court on 5th February, 2001 and the case be decided according to law from the stage, it was heard ex-parte, against appellant.