JUDGMENT 1. The present second appeal under Section 100 of the Code of Civil Procedure has been preferred by the plaintiff Smt. Chhaya Rai, who is suffering a decree passed by the trial Court on 3-9-1998 decreeing the counter-claim of defendant No.1 Binda Prasad Gupta. The said judgment and decree dated 3-9-1998 passed by the trial Court in Civil Suit No.8-A/98 has been affirmed by the first appellate Court vide the impugned judgment and decree dated 237-2002 in Civil Appeal No.80-A/2002. 2. The facts of the case, in nutshell, are that the suit land bearing Khasra No.771 area 1.01 acre situated at Satipara, Ambikapur was purchased by the plaintiff vide sale-deed dated 14-6-1989 for Rs. 30,000/- from Smt. Bhinsari, widow of Manjhidas. Possession of the land was delivered, however, defendant No.1 tried to interfere with the possession of the plaintiff by digging foundation to construct a wall on the suit land on 31-7-1989 giving rise to filing of the present suit. 3. Defendant No.1 denied the plaint allegations. He claimed ownership over the suit land by virtue of sale-deed dated 26-8-1988 from Manjhidas, son of Budhansai. According to the said defendant, he is in possession of the suit land and, therefore, he, being the owner, is raising construction in accordance with law. Defendant No.1 raised a counter-claim under Order 8 Rule 6A of the Code of Civil Procedure for declaration of his ownership and permanent injunction against the plaintiff and her agents not to interfere in his possession. 4. The suit was filed on 1-8-1989. Defendant No.1 filed his written statement along with the counter-claim on 14-9-1992 and the plaintiff filed her written statement to the counter-claim on 14-11-1992 and thereafter issues were framed on 18-12-1992. The case was fixed for recording evidence of the plaintiff's witnesses for the first time on 10-9-1993. Thereafter, on some dates, the plaintiff's witnesses were present and on some dates they were not present. In the meanwhile, written statement was amended by defendant No.1 and the plaintiff also amended the plaint. On 8-12-1995, the plaintiff amended the plaint to implead State of Madhya Pradesh (now Chhattisgarh) as a defendant. On 22-12-1995, the matter was adjourned on account of plaintiff's failure to pay process fee for notice to the newly added defendant. On 10-1-1996 also, the matter was adjourned as the plaintiff had failed to pay process fee. On 8-12-1995, the plaintiff amended the plaint to implead State of Madhya Pradesh (now Chhattisgarh) as a defendant. On 22-12-1995, the matter was adjourned on account of plaintiff's failure to pay process fee for notice to the newly added defendant. On 10-1-1996 also, the matter was adjourned as the plaintiff had failed to pay process fee. The matter was then fixed for 6-2-1996 and on the said date, no one appeared for the plaintiff, however, defendant No.1 was represented by his counsel. The plaintiff's counsel informed the Court that he has no instructions on behalf of the plaintiff, therefore, the order-sheet records that no one appeared for the plaintiff on 6-2-1996. The suit was dismissed for want of prosecution, however, later on, the learned trial Court realized that no order has been passed on counter-claim, therefore, the counter claim was taken-up and in the absence of the plaintiff or her counsel, the plaintiff was declared ex parte in the counter-claim and the counter claim was fixed for recording the evidence of defendant No.1 on 22-3-1996. On this date, the plaintiff appeared through her counsel but defendant No.1's witnesses could not be examined. On 15-5-1996 again, defendant No.1's witnesses could not be examined. The order-sheet of 4-12-1997 records that the plaintiff has not made any effort to get the ex parte order passed against her set aside. She was allowed to participate in further proceedings. The plaintiff, thereafter, moved an interim application on 12-12-1997 for setting aside the ex parte order passed against her in the counter-claim. The said interim application of the plaintiff was rejected by the trial Court on 27-4-1998. 5. On 13-8-1998, defendant No.1 examined ex parte evidence of his witnesses, namely, Bindara Prasad, Bhoga and Bhinsari and on 24-8-1998 one Vijay Kumar was examined. The counter-claim was decreed on 3-9-1998. 6. In the meanwhile, the plaintiff preferred Civil Revision No. 1472/1998 challenging the order passed by the trial Court on 27-4-1998, whereby her application for setting aside the ex parte order in the counter-claim was rejected by the trial Court. Civil Revision No.14 72/1998 was dismissed by the High Court vide its order dated 20-7-1998, the relevant part of which reads as under: "........ Civil Revision No.14 72/1998 was dismissed by the High Court vide its order dated 20-7-1998, the relevant part of which reads as under: "........ This revision is directed against the order dated 27-4-98, whereby the application of the applicant u/O 9 Rule 7 of the C.P.C. and also u/O 13 Rule 4 of the C.P.C. have been dismissed by the trial" Court. 2. The facts of this case are that the applicant filed a suit against the non-applicants. The non-applicant No.1 filed a counter claim against the applicant. On 6-02-96 the suit of the applicant was dismissed in default on the ground that the counsel for the applicant stated that he had no instructions. It appears that the trial Court, by mistake, also did not pass any order on the counter claim. Thereafter, when it came to the notice of the Court, the trial Court marked the presence of the applicant as ex parte in counter-claim and proceeded ex parte against the applicant u/O 9 Rule 6 of the C.P.C. 3. Subsequently, the applicant, who would be the defendant in the counter-claim, appeared and filed an application u/O 13 Rule 2 of the C.P.C. and u/O 9 Rule 7 of the C.P.C. The trial Court declined to set aside the ex parte order after going through the order-sheet dated 602-96 and the application u/O 9 Rule 7 of the C.P.C. This Court is of the opinion that there is no error committed by the trial Court in doing so because the application itself shows that on 6-2-96 the counsel for the applicant, Shri Pradeep Sharma had stated no instructions. On the application, there is nothing to show for what reason the applicant did not pursue the suit or defended her case in the counter-claim. Similarly, the question of application u/O 13 Rule 2 of the C.P.C. does not arise in this case when the applicant was ex parte at earlier stage and was not in a position to comply with u/O 13 Rule 1 of the C.P.C. 4. For all the aforesaid reasons, there is no merit in this revision. The revision is, accordingly, dismissed, in limine." 7. For all the aforesaid reasons, there is no merit in this revision. The revision is, accordingly, dismissed, in limine." 7. The plaintiff did not prefer any application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree, however, the plaintiff preferred first appeal (Civil Appeal No.80-A/2002) under Section 96 of the Code of Civil Procedure before the District Judge, Ambikapur. The said first appeal has been dismissed by the appellate Court vide impugned judgment and decree. 8. The present second appeal has been admitted by this Court on the following substantial question of law: "Whether the trial Court was justified in allowing counter claim of the respondent No.1/defendant ex parte against the appellant/plaintiff'?" 9. The contention of learned counsel for the appellant in this Court is that the order dated 6-2-1996 when the plaintiff was proceeded ex parte is bad in law because the said date was not fixed for hearing in the suit but was fixed for filing written statement of the State of Madhya Pradesh (now Chhattisgarh). Learned counsel for the appellant has further submitted that the trial Court was not justified in reviving the counter-claim after having once dismissed the suit. According to him, the plaintiff should have been noticed before reviving the counter claim. Learned counsel has further argued that the appellant can challenge the order dated 6-2-1996 in appeal even if her earlier prayer for setting aside the ex perte order was rejected by the trial Court and the same has been affirmed in the civil revision by the High Court. 10. On the other hand, learned counsel for respondent No.1 has supported the orders passed by the trial Court on 6-2-1996 and 27-4-1998 as well as the judgment and decree passed by the trial Court and the first appellate Court. According to him, no substantial question of law arises for determination in favour of the appellant. Relying on Amba Bai and others Vs. Gopal and others1, Chandi Prasad and others Vs. Jagdish Prasad and other2, learned counsel for respondent No.1 submits that doctrine of merger would apply and the order proceeding ex parte has merged into the order passed by the High Court in the civil revision. 11. Relying on Amba Bai and others Vs. Gopal and others1, Chandi Prasad and others Vs. Jagdish Prasad and other2, learned counsel for respondent No.1 submits that doctrine of merger would apply and the order proceeding ex parte has merged into the order passed by the High Court in the civil revision. 11. The substantial question of law framed by this Court is not about the merits of the judgment and decree passed by the Courts below on the basis of the ex parte evidence recorded on the counter-claim. It is only with respect to the ex parte proceeding drawn against the plaintiff by the trial Court in the counter-claim on 6-2-1996. 12. To adjudicate and answer the said question of law, it would be apt to again refer to the proceedings of 6-2-1996, 27-4-1998 and the civil revision decided by the High Court. 13. On 6-2-1996, the learned trial Court dismissed the suit for want of prosecution, however, realizing that no order was passed on counter-claim, it was taken-up for hearing and the plaintiff was declared ex parte in the counterclaim. On 27-4-1998, the trial Court rejected the plaintiff's application for setting aside the ex parte order passed against her in the counter-claim and the, said order has been affirmed in the civil revision by the High Court, thus, the order dated 6-2-1996 was refused to be set aside by the trial Court on 27-4-1998 and the said refusal was affirmed by the High Court, meaning thereby, that the orders dated 6-2-1996 as well as 27-4-1998 of the trial Court have merged in the order passed by the High Court in the civil revision. The High Court, having once affirmed the trial Court's order proceeding ex parte against the appellant, the said fact cannot be re-opened in the instant second appeal. 14. The appellant's submission that since both the options, namely, to take up proceedings for setting aside the ex parte order as well as to challenge the judgment and decree in appeal is open to the appellant, therefore, the validity and propriety of the trial Court's order dated 6-2-1996 can be examined in this second appeal. 15. 14. The appellant's submission that since both the options, namely, to take up proceedings for setting aside the ex parte order as well as to challenge the judgment and decree in appeal is open to the appellant, therefore, the validity and propriety of the trial Court's order dated 6-2-1996 can be examined in this second appeal. 15. In the instant case, the appellant herein had taken recourse to both the options, however, when first option regarding steps taken by the appellant for getting the ex parte order set aside has attained finality in the civil revision by the High Court, the appellant in this appeal against the merits of the impugned judgment and decree, cannot challenge the correctness of the order whereby she was proceeded ex parte. It would have been a different case if the appellant herein had not taken steps for setting aside the ex parte order or having taken steps had not taken it further in civil revision before the High Court, but once having challenged the said interim order in the High Court and having failed therein, the appellant cannot now again agitate the same issue in the appeal on merits against the impugned judgment and decree. 16. Relying on Ramlal Chaurasia and others Vs. Rewa Coal Fields Ltd. Calcuttc3, and Nagar Palika Nigam, Gwalior Vs. Motilal Munnalal4 learned counsel for the appellant submits that though the appellant cannot challenge the order proceeding ex parte against her on the ground that there was sufficient cause for her non-appearance yet in the regular appeal she can show that in the order proceeding ex parte there was an error, irregularity or defect affecting the decision of the case. Learned counsel for the appellant has also relied on a decision of the Supreme Court in Bhanu Kumar Jain Vs. Archana Kumar and another5, and Achal Misra Vs. Rama Shanker Singh and others6, in support of his above submission. According to learned counsel for the appellant, there is defect in the order proceeding ex parte against the appellant on 6-2-1996 inasmuch as having dismissed the suit, the learned trial Court could not have revived the counter-claim without notice to the plaintiff and that after dismissal of the suit, the Court had become functus officio. 17. According to learned counsel for the appellant, there is defect in the order proceeding ex parte against the appellant on 6-2-1996 inasmuch as having dismissed the suit, the learned trial Court could not have revived the counter-claim without notice to the plaintiff and that after dismissal of the suit, the Court had become functus officio. 17. To deal with the issue regarding any other error, irregularity or defect in the order dated 6-2-1996, it is necessary to refer to the provisions contained in Order 8 Rules 6-A and 6-D of the Code of Civil Procedure. Rules 6-A and 6-D of Order 8 of the Code of Civil Procedure read as under: "O.8 R.6-A : Counter-claim by defendant-(1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter claim is in the nature of a claim for damages or not: Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. (2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. O.8 R.6-D: Effect of discontinuance of suit.- If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with." 18. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. O.8 R.6-D: Effect of discontinuance of suit.- If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with." 18. On bare perusal of the provisions contained in Order 8 Rules 6-A and 6-D of the Code of Civil Procedure, it would clearly appear that a counterclaim is a separate and independent proceeding than the suit instituted by the plaintiff, therefore, an order on the counter-claim was required to be passed on 6-2-1996 even if the plaintiff's suit was dismissed for want of prosecution. The trial Court having realized that no order has been passed on the counterclaim, took-up the matter to deal with the counter claim on the same date and proceeded ex parte against the appellant/plaintiff in the counter-claim. This Court does not find any irregularity, error or defect in the proceedings of the trial Court dated 6-2-1996 with regard to the counter-claim. Since an order in the counter-claim is required to be passed separately, the trial Court had not become functus officio insofar as the counter-claim was concerned and since the counter-claim was not dismissed by the Court in the first part of the order dated 6-2-1996, there was no question of its revival later on and, therefore, there is no question of issuing separate notice to the appellant/plaintiff before taking-up the counter-claim on the same date, as it was the duty of the trial Court to pass an order on the counter-claim by virtue of the provisions contained in Order 8 Rule 6-D of the Code of Civil Procedure. 19. In the result, this Court does not find any irregularity, error or defect in the order proceeding ex parte against the appellant/plaintiff on 6-2-1996. The substantial question of law is answered against the appellant. The second appeal fails and is hereby dismissed. The judgment and decree passed by the Courts below are affirmed. The appellant/plaintiff shall bear her own costs of this appeal as well as the costs of respondent No.1/defendant No.1. 20. A decree be drawn accordingly. Appeal Dismissed.