JUDGMENT RAGHUBIR DASH, J. 1. Both the appeals having arisen out of the judgment dated 16.12.2013 passed by the learned District Judge, Puri in R.F.A. Nos. 109 and 110 of 2010 are analogously heard to be disposed of by a common judgment. 2. Vide the impugned judgment, the learned District Judge has set aside the judgment and decree passed by the learned Additional Civil Judge (Senior Division), Puri in C.S. No. 74/269 of 2007/2003 and remanded the suit back to the learned trial court for fresh adjudication. 3. The appellant and the respondent are plaintiff and defendant, respectively, before the learned trial court. 4. The plaintiff filed the suit for declaration of his title with other consequential reliefs including recovery of possession and permanent injunction claiming that the suit property was the lease hold property of the defendant Manorama Mishra, who being in need of money to meet her legal necessity alienated the same to the plaintiff through a Registered Sale Deed bearing No. 10414 dated 04.09.1965 and made delivery of possession. Since the plaintiff used to reside outside, he allowed the defendant’s husband to look after the settlement matter but taking advantage of his long absence defendant’s husband encroached the suit land and constructed a house thereon. Hence, the suit. 5. The defendant denied that she had executed any sale deed alienating the suit land in favour of the plaintiff. Therefore, she made a counter claim in her W.S. seeking for declaration that the sale deed is null and void, besides a prayer for declaration of her title over the suit land. To support her claim, she took the stand that initially the suit property was the lease hold property of one Bhagabat Sunder Ray which was leased out by Puri Municipality for 30 years. During subsistence of lease, the said Bhagabat Sundar Ray sold the suit land to the defendant. After expiry of lease period, the defendant moved the Puri Municipality for renewal of the lease on the basis of her purchase from the original lessee which was allowed and since then she has been in possession of the property and residing therein by constructing a house thereon. 6. Learned trial court framed issues and invited parties to adduce evidence. The plaintiff adduced evidence. When defendant’s turn came her advocate filed a “no instruction” memo. 6. Learned trial court framed issues and invited parties to adduce evidence. The plaintiff adduced evidence. When defendant’s turn came her advocate filed a “no instruction” memo. Learned trial court closed the evidence and after hearing the plaintiff’s argument and upon consideration of the evidence available on record decreed the plaintiff’s suit and dismissed the counter-claim. Challenging the judgment and decree of the learned trial court, the defendant preferred two appeals, one against the relief granted to the plaintiff decreeing his suit and the other against the dismissal of her counter claim. Learned lower appellate court heard both the appeals analogously and framed the following points for determination: (i) Whether opportunity was given to the appellant to adduce evidence as defendant and in spite of such opportunity he failed to do the same? (ii) Whether the Government of Orissa is a necessary party to the proceeding or not? (iii) Whether the learned trial Court has dealt with suit as well as counter claim of the parties so far as declaration of right, title, interest is concerned or not? 7. On point No. I, the learned appellate court has observed that when the learned counsel for the defendant filed no instruction memo in the midst of the trial, the trial court should have served a notice on the defendant to give her an opportunity to contest the case. Relying on the decision in Malkait Singh and Another vs. Joginder Singh and Others, 1998 (I) OLR (SC) 404 in support of its finding that such a notice was essential, the learned lower appellate court considered it just and appropriate to remand the suit to the trial court for fresh adjudication. 8. On point No. II, the learned lower appellate court has observed that since the property in question stands recorded in the name of Government of Orissa and the suit is for declaration of right, title and interest, the State is a necessary party and in the absence of the State an effective decree could not have been passed in the suit. Therefore, the learned lower appellate court while remanding the case has directed the learned trial court to frame an additional issue on non-joinder of necessary party. 9. Therefore, the learned lower appellate court while remanding the case has directed the learned trial court to frame an additional issue on non-joinder of necessary party. 9. On point No. III, learned lower appellate court has observed that though the learned trial court has directed the defendant to deliver possession of the suit land to the plaintiff by demolishing structure, if any, standing thereon, with permanent injunction not to interfere with the plaintiff’s possession over the suit property, but before going to grant such reliefs it has not recorded its finding declaring plaintiff’s right, title and interest in the suit property. 10. Challenging the order of remand, learned counsel for the appellant submits that in the absence of a finding recorded by the learned lower appellate court to the effect that the evidence on record is not sufficient to adjudicate the matter, the order of remand, which is contrary to the provisions contained in Rule-24 of Order-41, C.P.C. is not sustainable. It is further contended that since the defendant failed to give instruction to her advocate, the learned trial court proceeded in terms of Order-17, Rules 2 and 3, C.P.C. and therefore, the learned appellate court should not have held that a notice was necessary to be served on the defendant to give her opportunity to contest the suit subsequent to her counsel’s filing a no instruction memo. It is further contended that in view of the settled position of law, the State is not a necessary party to the present proceeding and, therefore, the conclusion of the learned lower appellate court on point No.2 is not sustainable in the eye of law. Further contention is that the learned trial court having decided the rights of the parties upon taking into consideration the materials on record, before granting the relief of delivery of possession in favour of the plaintiff, the learned lower appellate court should not have remanded the matter for disposal of the suit afresh merely on the technical ground that there is no speaking order declaring plaintiff’s right, title and interest. 11. In my considered view, fate of the appeal mostly depends on the answer to point No.1. 11. In my considered view, fate of the appeal mostly depends on the answer to point No.1. It is to be considered as to whether in the facts and circumstances of the case the learned appellate court is justified in taking the decision that consequent upon filing of a no instruction memo during midst of the trial, the learned trial court ought to have caused a notice served on the defendant to give her a fair opportunity to contest the case. As already stated, after closure of evidence from the side of the plaintiff, few adjournments were granted to the defendant to adduce evidence and then her counsel filed a no instruction memo. Thereafter, the learned trial court fixed another date with a direction to the defendant to proceed with the case by herself and when on the next date the defendant did not appear to take part in the proceeding, her evidence was closed, argument from the side of the plaintiff was heard and judgment was delivered showing the suit to have been decreed on contest. This situation is clearly covered under Order 17 Rule 2 of C.P.C. which runs as follows. “Procedure if parties fail to appear on day fixed – Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. Explanation – Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present.” 12. Since no evidence was adduced by the defendant as on the date of her failure to appear to take part in the hearing, neither the Explanation to Rule 2 nor the provisions contain in Rule 3 of Order 17 C.P.C. is applicable. Therefore, virtually, the learned trial court has proceeded to hear the matter ex parte as contemplated under Order 9 Rule 6 (1)(a) C.P.C. and the decreed passed in the suit is an ex parte decree. Therefore, virtually, the learned trial court has proceeded to hear the matter ex parte as contemplated under Order 9 Rule 6 (1)(a) C.P.C. and the decreed passed in the suit is an ex parte decree. It is not in dispute that the defendant did not take recourse to get the ex parte decree set aside by making an application under Order 9 Rule 13 C.P.C. Instead, she preferred an appeal against the trial court’s ex parte decree. 13. Relying on the judgment of the Apex Court in Malkiat Singh and Another vs. Joginder Singh and Others, AIR 1998 SC 258 learned lower Appellate Court observed that law is well settled that when no instruction memo is filed by the counsel appearing for a party it is the duty of the court to first send notice to that party regarding no instruction memo filed by his/her counsel and thereafter to proceed with the case. Since no such notice was served on the defendant, the learned appellate court held that such a notice should have been served on the defendant and in the absence of such notice the defendant was denied opportunity to contest the proceeding. Learned counsel for the respondent submits that there cannot be a universal proposition that whenever the counsel files a memo of no instruction, notice is to be issued to the party as a matter of rule. It is further submitted that since Order 17 Rules 2 and 3 C.P.C. make provision enabling the court to proceed with the case in the absence of a party, if such issuance of notice is insistent on as a matter of rule, then Rules 2 and 3 shall be rendered obsolate. 14. It is rightly submitted by the learned counsel for the respondent that in Malkiat Singh’s case (supra) several factual aspects were taken into consideration before a notice to the party whose advocate pleaded no instructions was considered to be essential. That was a proceeding under Order 9 Rule 13 C.P.C. where the appellants in their application had clearly pleaded that they were neither careless nor negligent and as soon as they learnt about the ex parte decree they filed an application to set aside the decree. On perusal of the record of that case, it was found that the appellants were in fact neither careless nor negligent in defending the suit. On perusal of the record of that case, it was found that the appellants were in fact neither careless nor negligent in defending the suit. It was further taken into consideration that the appellants had engaged a counsel to defend them in the suit and the counsel before pleading no instructions did not issue any notice to the appellants who were, admittedly, not present on the date when their counsel reported no instructions in the court. It was also taken into consideration that none of the parties had pleaded that the counsel had informed the appellants after he had reported no instructions to the court. It was also taken into consideration that none of the parties had pleaded that the counsel had informed the appellants after he had reported no instructions to the court. Taking this fact situation into consideration Hon’ble Apex Court held that the learned trial court in the interest of justice ought to have issued notice to the appellants after their counsel had reported no instructions. 15. The facts situation of the case in hand is almost similar to that in Malkiat Singh’s case. The only different is that in Malkiat Singh case the aggrieved party had filed an application under Order 9 Rule 13 C.P.C. wherein they had pleaded that they were neither careless nor negligent in defending their suit, whereas in the case in hand the appellants preferred an appeal against the ex parte decree and it is not shown to this court that in their first appeal the appellant had pleaded that she was neither careless nor negligent in defending her case. But then, it is nobody’s case that from the date of service of notice on her in the suit till the no instruction memo was filed she had taken any dilatory tactics to delay disposal of the suit and was ever careless and/or negligent in defending the suit except on the dates she was absent after the plaintiff had closed his evident. Admittedly, on 2-3 dates preceding the filing of no instruction memo the respondent-defendant had remained absent in the court. It is nobody’s case that her counsel had issued any notice to the defendant either before or after filing of the no instructions memo. The defendant was a widow. She had engaged a counsel to defend her in a suit. Admittedly, on 2-3 dates preceding the filing of no instruction memo the respondent-defendant had remained absent in the court. It is nobody’s case that her counsel had issued any notice to the defendant either before or after filing of the no instructions memo. The defendant was a widow. She had engaged a counsel to defend her in a suit. No doubt the ex parte judgment was passed in November 2008 and the first appeal was preferred in the year 2010. However, since her first appeal was admitted, it is evident that the delay has been successfully explained by the defendant. 16. Under such circumstances, this court is of the view that though the observation made in Malkiat Singh’s case (supra) regarding service of notice is not applicable as a matter of rule, the same is applicable to the fact situation of the case in hand. 17. Learned counsel for the respondent has cited another judgment of the Supreme Court in Mahammad Khalil vs. Ruddin, 1996 (3) CCC 368 (SC) wherein it is observed that when a party has engaged a counsel it is the duty of the party to see that the counsel is ready and when the counsel is not present, court is not encumbered to adjourn the case. But the fact situation of that case is quite distinguishable. 18. All having said and done, I am of the considered view that the learned lower appellate court has made correct observation on the requirement of notice on the defendant-respondent and has rightly set aside the ex-parte judgment and decree with order of remand to the learned trial court for fresh adjudication. 19. So far point No. II is concerned the learned lower appellate court’s observation that the state is necessary party and in his absence no effective decree can be passed, should be set aside and it should be left open to the learned trial court to decide whether the State is necessary party. However, the direction of the learned lower appellate court that an issue on the non-joinder of necessary party should be framed by the learned trial court ought to be confirmed. In view of this Court’s finding on point No. I it has become unnecessary to deal with point No. III. 20. With the observation made above, both the appeals are dismissed on contest but in the facts and circumstances of the case without any cost. In view of this Court’s finding on point No. I it has become unnecessary to deal with point No. III. 20. With the observation made above, both the appeals are dismissed on contest but in the facts and circumstances of the case without any cost. 21. As the suit is of the year 2003, the learned trial court shall dispose of the same on priority basis, preferably by the end of the year 2014. The parties are directed to appear before the learned lower court on 20.6.2014 to take further instructions.