ORDER Arya, J. -- 1. This appeal by the plaintiff/appellant under Order XLIII rule 1(u) CPC is directed against the judgment and decree dated 7.9.2012 passed in Civil Appeal No.55A/2010 (Meena Bai v. Shiv Dayal and others) by the Additional District Judge to the Court of IInd Additional District Judge )Fast Track Court), Ganj Basoda, District Vidisha. By the aforesaid impugned judgment and decree, the judgment and decree passed by the trial Court in Civil Suit No.106A/2009 (Shivdayal v. Meena Bai and others) has been set aside and remanded back to the trial Court to decide the matter afresh on merits. 2. Facts necessary for disposal of this appeal are to the effect that as per plaint averments, the plaintiff’s fater, Mahesh Babu and Sukhlal are real brothers. Sukhlal was not married. He was dumb. He used to stay with the plaintiff’s father. Plaintiff used to look after him, therefore, Sukhlal developed love and affection for plaintiff. On 10.2.1999, Sukhlal had bequeathed his share in the joint Hindu family property; various parcels of agricultural land including the suit land in favour of the plaintiff as described in paragraph 2 of the memorandum of appeal. Plaintiff’s father and Sukhlal have been in joint possession to the extent of 2.299 hectare out of the joint Hindu Family property. Accordingly, the plaintiff succeeded the entire land as aforesaid. The remaining defendants of joint Hindu family are in possession to the extent of holding fallen to their shares. One Meena Bai (defendant No.1) though had no relationship with Sukhlal but styling hereself as widow of Sukhlal made an attempt for seeking mutation in the revenue record in respect of the suit land. As plaintiff apprehended that on misrepresentation, she may create thire party rights over the suit land, he filed the present suit. 3. Defendant No.2 supported the claim of plaintiff, however, remaining defendants remained ex parte. 4. The trial Court framed issues and on the basis of evidence brought on record, decreed the suit partially. First appeal under section 96 CPC was filed at the instance of defendant No.1, Meenabai. First appellate Court as a matter of fact was required to address on the merits of the suit and deliver the judgment upon appreciation of material placed on record with due advertence to the pleadings of the parties. First appeal under section 96 CPC was filed at the instance of defendant No.1, Meenabai. First appellate Court as a matter of fact was required to address on the merits of the suit and deliver the judgment upon appreciation of material placed on record with due advertence to the pleadings of the parties. First appellate Court instead has in fact and in effect invoked the jurisdiction under Order XLIII Rule 1(d) CPC and addressed on grounds of sufficienty of reasons and justification germane for deciding appeal against order refusing to set aside ex parte decree under Order IX rule 13 CPC. This could not have been done as in appeal under section 96 CPC against ex parte decree, it is not open for appellate Court to address on grounds for setting aside ex parte decree. This could not have been done as scope and jurisdiction of appeal under Order XLIII rule 1(d) CPC is different and independent of jurisdiction of first appeal under section 96 CPC. The first appellate Court framed question to the effect that, (i) whether the trial Court was justified in passing the ex parte judgment and decree against the defendant No.1/appellant?, and (ii) whether the ex parte judgment and decree passed by the trial Court was liable to be set aside on facts ? Both these questions are amenable to different nature of jurisdiction which are mutually independent. For setting aside ex parte judgment and decree by preferring an application under Order IX rule 13 CPC, defendant may question the correctness of the same contending that he had sufficient and cogent reasons for not being able to attend hearing of the suit on the relevant date, on which ex parte judgment and decree was passed whereas in a first appeal under section 96 CPC against the ex parte judgment and decree, these grounds cannot be raised and adjudicated (Refer to the judgment of Hon’ble Supreme Court reported in (2005)1 SCC 787 , Bhanu Kumar Jain v. Archana Kumar and another and a Division Bench judgment of this Court reported in 2009(2) MPLJ 329 , Rasiklal Manikchand Dhariwal and Dhariwal Industries Limited). 5. 5. In the facts and circumstances of the case, in the opinion of this Court, first appellate Court committed patent error of law, while dealing with evidence brought on record discussed merits of the issue as contained in paragraphs 14 to 19 of the impugned, particularly, in the context of factum of execution of ‘will’ dated 10.2.1999 and thereafter chose to remand the case without reversing findings of the trial Court. As a matter of fact, if first appellate Court intended to remand the case to trial Court under Order XLI rule 23A CPC, it was required to first reverse the finding of trial Court on issues and thereafter upon conclusion that retrial was necessary, the said jurisdiction could have been invoked. That was not done. First appellate Court in all fairness, ought to have decided the appeal on merits instead of deciding the issue of ex parte judgment and decree against the defendant/appellant from paragraphs 8 to 13. Consequently, having remanded the suit to trial Court, in the facts and circumstances of the case, first appellate Court has improperly and erroneously exercised jurisdiction under 96 CPC. Hence, the impugned judgment and decree are set aside. 6. The appeal is allowed and disposed of with a direction to the first appellate Court to rehear the parties and decide the appeal on merits expeditiously not later that six months from the date of appearance of the parties with a certified copy of this order, in accordance with law. 7. It is made clear this Court has not expressed any opinion on merits of the case.