JUDGMENT: This second appeal under Section 100 CPC is directed against the judgment and decree dated 11.9.2012 passed by the Additional District Judge, Phalodi, District Jodhpur, whereby the appeal preferred by the appellant against the judgment and decree dated 23.12.2010 passed by the Civil Judge (Sr.Div.), Phalodi has been rejected and the decree passed by the trial court has been upheld. The facts in brief may be noticed thus : plaintiffs – Bhikamchand and Ashok Kumar filed a suit for declaration and permanent injunction against the officials of the Gram Panchayat, Lohawat, Tehsil Phalodi; Zila Parishad, Jodhpur; Ramchandra and the present appellant Kesarimal, inter-alia, with the averments that the suit property situated in Chhipon Ka Bas, Vishnawas, Village Lohawat was owned/purchased by them and they had patta of the said land, which was purchased by them in public auction having Patta No.26, File No.27/89-90 dated 28.12.1990 in the name of Bhojraj Soni, which was purchased by the plaintiffs on 6.11.1992 by way of registered sale deed from said Bhojraj; on 19.1.1994, after obtaining permission from Gram Panchayat for construction of house, the suit property was encircled by stone slabs and was ad measuring 50' x 26'. It was then contended that defendant No.5 Ramchandra claims ownership of the Plot No.223 in the colony and that a Plot No.224 owned by father of defendants No.5 & 6 is situated in the same colony / plan. The patta in the name of defendant No.5 has been issued under File No.3/56-57 dated 26.3.1957 and Patta Bahi No.41, Sale deed dated 14.9.1958 the plot has been indicated as ad measuring 50' x 50' and does not indicate any road or lane on any side, no plot number is indicated in the sale deed / patta. On the same day, another patta dated 12.6.1957 being Patta No.2 in the name of Babu Lal, Pukhraj, Ashkaran and Deepadan was issued being Plot No.222, however, neither the documents pertaining to Plot No.222 nor Plot No.224 indicates existence of any Plot No.223 and the boundaries of defendant No.5 sold and patta does not match. Another patta pertaining to Plot No.221 was issued indicating Plots No.222 and 224, however, there is no reference of Plot No.223 which indicates that the patta owned by defendant No.5 does not pertain to the said area. The defendant No.5 was harassing the plaintiffs and have been approaching various courts distressing the plaintiffs. Another patta pertaining to Plot No.221 was issued indicating Plots No.222 and 224, however, there is no reference of Plot No.223 which indicates that the patta owned by defendant No.5 does not pertain to the said area. The defendant No.5 was harassing the plaintiffs and have been approaching various courts distressing the plaintiffs. The plaintiffs became aware about the status indicated in the plaint on getting information from the report prepared by the Development Officer defendant No.3 dated 18.7.2007, wherein it was clear that the defendants No.5 & 6 were wrongly harassing the plaintiffs; their plots were near Shyamji's temple, which has been trespassed by other persons. It was further indicated that the defendant No.6 has filed a Writ Petition No.1513/2008 before the High Court, wherein the plaintiffs became aware of the report and therefore, notice under Section 109 of the Rajasthan Panchayati Raj Act, 1994 was issued, which was received by the defendants No.1 to 4. However, still the defendants No.5 & 6 were bent upon evicting the plaintiffs. Based on the above averments, the plaintiffs claimed permanent injunction against the defendant seeking restraint against them from interfering in the possession either themselves or through anybody else. While service on defendant No.6 – appellant was effected by pasting (affixation) and was treated as complete. The defendant No.5 despite service did not appear. A written statement was filed by the defendants No.1 & 2, wherein it was indicated that the land as per the patta was not available at the plot, though patta has been issued as per town planner, however, map of town planner was not available with the Panchayat. Plots No.223 & 224 are situated at Nayapura but the boundaries as per patta were not correct and land on the spot as per boundaries was not available. The defendants have not conspired with any one and are not dispossessing anyone. It was prayed that the suit filed by the plaintiffs be dismissed. After filing of the written statement, the trial court framed issue pertaining to the ownership and possession of the plaintiffs. On behalf of the plaintiffs, two witnesses were examined and on behalf of the defendant, one witness was examined. It was prayed that the suit filed by the plaintiffs be dismissed. After filing of the written statement, the trial court framed issue pertaining to the ownership and possession of the plaintiffs. On behalf of the plaintiffs, two witnesses were examined and on behalf of the defendant, one witness was examined. After hearing the parties, the trial court came to the conclusion that the Gram Panchayat had accepted the patta issued in favour of the plaintiffs and the houses indicated on the South and North in the patta have been indicated in the plaint as well and therefore, the defendants No.1 to 6 were restrained by way of permanent injunction from trespassing on the suit plot and to dispossess the plaintiffs and the plaintiffs were declared owners of the suit plot. Feeling aggrieved, the appellant filed first appeal before the Court of Additional District Judge, Phalodi. Alongwith the appeal, an application under Section 5 of the Limitation Act was also filed seeking condonation of delay in filing the appeal. In the appeal as well as the application seeking condonation of delay almost all the grounds raised pertained to the ex-parte proceedings against the appellant and challenge was given to the manner of service and allegations regarding fraud etc. in getting the decree ex-parte were made. Few averments / objections regarding the merit of the decree passed by the trial court were also raised. However, the appellant chose not to produce any document in support of any of the contentions under Order XLI, Rule 27 CPC. In the appeal, initially, despite service, the respondents No.1 & 2 did not appear and therefore, the appeal was directed to proceed ex-parte. Whereafter an application under Order IX, Rule 7 CPC (wrongly filed as Order IX, Rule 8 CPC) was filed by the respondents. In the appeal, initially, despite service, the respondents No.1 & 2 did not appear and therefore, the appeal was directed to proceed ex-parte. Whereafter an application under Order IX, Rule 7 CPC (wrongly filed as Order IX, Rule 8 CPC) was filed by the respondents. The appellate court, after hearing the parties, condoned the delay in filing the appeal, scrutinised the pleadings, oral and documentary evidence and came to the conclusion that the trial court did not commit any mistake in deciding the issue in favour of the plaintiffs and further determined that the issues raised by the appellant regarding setting the matter ex-parte and the ex-parte decree against him were not open to question in appeal under Section 96 CPC and could only be questioned by way of filing application under Order IX, Rule 13 CPC and consequently, dismissed the appeal filed by the appellant. Learned counsel for the appellant submitted that a bare look at the record of the trial court and the first appellate court would reveal that both the courts have committed serious legal and factual mistakes; the appellant was not properly served before the trial court; the decree was wrongly passed ex-parte against him; in the appellate court, the application filed by the respondents No.1 & 2, under Order IX, Rule 7 CPC was not decided, however, they were permitted to advance their submissions by the appellate court; despite noticing pendency of the petition before the High Court, the trial court and the appellate court wrongly decided to proceed with the suit; and the first appellate court wrongly refused to look into the validity of passing of ex-parte order and judgment by the trial court and therefore, the present appeal involves substantial questions of law and the same, therefore, deserves to be admitted. I have considered the submissions made by learned counsel for the appellant. There is no dispute that the matter proceeded ex-parte against the defendants No.5 & 6 before the trial court as despite service they did not appear, the trial court based on the evidence available on record came to the conclusion that the suit plot was owned and possessed by the plaintiffs and granted declaration about the ownership and permanent injunction against the defendants including the appellant. The appellant instead of approaching the trial court by way of an application under Order IX, Rule 13 CPC seeking setting aside of the ex-parte decree against him, chose to question the judgment by way of filing first appeal under Section 96 CPC before the appellate court. However, as noticed here-in-before in the memo of appeal, the entire emphasis of the appellant was in questioning the passing of the ex-parte order by the trial court and consequential ex-parte decree and incidentally some issues on merit of the decree passed by the trial court were also raised. The law regarding remedies available to a defendant in the event of an ex-parte decree passed against him has been thoroughly dealt with by a three Judges Bench of the Hon'ble Supreme Court in Bhanu Kumar Jain v. Archana Kumar and Anr. : (2005) 1 SCC 787 , wherein after noticing and discussing the entire law on the subject, the Court finally observed and laid down as under:- “38. The dichotomy, in our opinion, can be resolved by holding that whereas the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex parte hearing by the trial court and/or existence of a sufficient case for non-appearance of the defendant before it, it would be open to him to argue in the first appeal filed by him under Section 96(2) of the Code on merits of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. Lack of jurisdiction of the court can also be a possible plea in such an appeal. We, however, agree with Mr. Lack of jurisdiction of the court can also be a possible plea in such an appeal. We, however, agree with Mr. Chaudhari that the “Explanation” appended to Order 9 Rule 13 of the Code shall receive a strict construction as was held by this Court in Rani Choudhary, P. Kiran Kumar and Shyam Sundar Sarma v. Pannalal Jaiswal.” A bare reading of the above conclusion of the Hon'ble Supreme Court reveals that though it is not permissible for a defendant to question the order posting the suit for ex-parte hearing by the trial court and passing of the ex-parte decree on account of his non-appearance, still it is open for him to argue in the first appeal under Section 96(2) CPC that from the available material before the trial court, even if defendant's written statement was not on record, the decree could not have been passed by the trial court and nothing more. In the present case as noticed here-in-before, the appellate court refused to examine the validity of order posting the hearing of the suit ex-parte and passing of the ex-parte decree, but examined the validity of the judgment passed by the trial court on Issue No.1 and came to the conclusion that the findings recorded by the trial court did not call for any interference on the grounds raised by the appellant. In view of the law laid down by the Hon'ble Supreme Court in the case of Bhanu Kumar Jain (supra), the approach of the first appellate court in refusing to examine the validity of order posting the suit ex-parte by the trial court cannot be said to be incorrect rather the same is in perfect consonance with law laid down by the Hon'ble Supreme Court. So far as the submission as to the fact regarding the trial court entertaining the suit despite pendency of the writ petition is concerned, the issue raised by the plaintiffs in their suit required leading of oral and documentary evidence could only be decided in a properly instituted civil suit. However, the pendency of the writ petition by itself does not preclude the trial court from proceeding with the suit. However, the pendency of the writ petition by itself does not preclude the trial court from proceeding with the suit. On merits of the claim made by the plaintiffs, both the courts after scrutinising the oral and documentary evidence available on record have concurrently found in favour of the plaintiffs, learned counsel for the appellant could not point out any perversity in the said findings. As far as further submission made by learned counsel for the appellant regarding the appellate court giving hearing to the respondents-plaintiffs without deciding their application under Order IX, Rule 7 CPC is concerned, it is well settled that the respondent / defendant against whom appeal / suit is ordered to be proceeded ex-parte is entitled to take part in the appeal / suit at a later stage, but he cannot be relegated to the position he could have occupied if he had appeared unless he makes an application under Rule 7 of Order IX. As in the present case only submissions on the appeal were to be heard by the First Appellate Court, even filing of application under Order IX, Rule 7 CPC was not required, as such, there is no substance in the plea raised by learned counsel. In view of the above discussion, the appeal filed by the appellant does not involve any substantial question of law and consequently, the same is dismissed.