ORDER : Plaintiffs have filed the present appeal under Order 43 Rule 1(U) of the CPC against the judgment dated 03.08.2012 passed by the Additional District Judge, Badwah, district Khargone (West Nimar) whereby the first appeal No.19-A/2007 filed by the defendants has been allowed and the matter has been remanded back to the trial Court for fresh adjudication. Facts of the case in short are as under: 2. Present appellants being plaintiffs filed a suit for permanent injunction and declaration for the land bearing survey No.49, area 11.189 hectares & survey No.33, area 11.920 hectares, situated at village Piday Bujurg, Tahsil Badwah (hereinafter referred to as 'the suit land'). According to the plaintiffs, they are owners and occupiers of the suit land. The suit land was given to the ancestor of the plaintiffs by the owner late Rana Balbahadur Singh, the then Inamdar vide lease deed dated 17.05.1955 for a period of 99 years. The father of the plaintiffs became Krishak and after his death the plaintiffs have acquired the status and are in possession and after coming into force the M.P.L.R Code, 1959, they have acquired the title of Bhumiswami. On 21.09.2001 the plaintiffs dug two tube wells on survey No.49 which was in the knowledge of the defendants. Against Rana Balbahadursingh a proceeding under the M.P. Agriculture Ceiling Act was registered in which he submitted a declaration that the suit land was given to the father of the plaintiffs and the proceedings were closed vide order dated 28.01.1976, therefore, he was no more owner of the suit land and the said judgment has attained finality. The plaintiffs have alleged that despite the aforesaid the defendants are trying to dispossess them forcibly, hence a cause of action was accrued in their favour for filing the suit. 3. The defendants filed the written statement denying the averments made in the plaint. According to the plaintiffs, their father was a Govt. Teacher and after quitting the service he worked as Diwan and the suit land was under court of voice and in the year 1951-52 the defendants became major as well as owner of the suit land. When the Jagirdari Abolition Act was came into force, the defendants were owner of the suit land. After the death of Balbahadur Singh in the year 1999 the defendants' name were mutated in the revenue record and the plaintiffs did not raise any objection. When the Jagirdari Abolition Act was came into force, the defendants were owner of the suit land. After the death of Balbahadur Singh in the year 1999 the defendants' name were mutated in the revenue record and the plaintiffs did not raise any objection. The lease deed is not admissible in evidence. The father of the plaintiffs was suffering from paralysis in the year 1976-77 and was incapable of doing the agricultural work, hence prayed for dismissal of the suit. The defendants were proceeded ex-parte in the suit and did not cross examine the plaintiffs' witness. Vide judgment and decree dated 06.02.2007 learned Civil Judge has decreed the suit in favour of the plaintiffs. 4. Being aggrieved by the ex-parte proceedings, the defendants filed an application under Order 9 Rule 7 CPC but got registered it as an application under Order 9 Rule 13 CPC, however, that application was dismissed and an ex-parte decree dated 06.02.2007 was passed. Being aggrieved by the ex-parte judgment and decree, the defendants preferred a regular civil appeal under section 96 of the CPC. The said appeal was opposed by the plaintiffs, however, learned Additional District Judge, Badwah vide judgment dated 03.08.2012 has set aside the ex-parte judgment and decree dated 06.02.2007 and remanded the case to the trial Court with cost of Rs.5,000/-, hence the present appeal before this Court. 5. Learned counsel for the appellants submits that after dismissal of the application under Order 9 Rule 7 CPC the defendants filed a writ petition No.666/2006 before this Court, however, on 30.08.2006 they withdrew the said writ petition. Thereafter they moved a fresh application under Order 9 Rule 7 CPC which was rejected by the trial Court on 16.01.2007 and vide judgment and decree dated 06.02.2007 the suit has been decreed, therefore, the first appellate Court has wrongly set aside the ex-parte judgment and decree under the provisions of Order 9 Rule 7 CPC. The first appellate Court has committed an error of law while remanding the case in violation of provisions of Order 43 Rule 23 of the CPC without reversing the judgment and decree. The first appellate Court ought to have entertained the appeal on merit under the provisions of Order 43 CPC, hence the judgment dated 03.08.2012 be set aside and the matter be remanded back to the first appellate Court for deciding the appeal on merit. The first appellate Court ought to have entertained the appeal on merit under the provisions of Order 43 CPC, hence the judgment dated 03.08.2012 be set aside and the matter be remanded back to the first appellate Court for deciding the appeal on merit. In support of his contention he has placed reliance over the judgment passed by the Division Bench of this Court in the case of Rasiklal Manikchand Dhariwal and Dhariwal Industries Ltd. vs. M.S.S Food Products 2009 (2) MPLJ 329 in which it has been held that in a first appeal filed under section 96 of the CPC against the ex-parte decree, the grounds available for setting aside as ex-parte decree under Order 9 Rule 13 CPC are not available. 6. Per contra, Shri Rishi Tiwari, learned counsel for the respondents submits that the first appellate Court has not committed any error of law while setting aside the ex-parte decree because on 16.11.2006 the trial Court fixed the case for plaintiffs' evidence and Shri Purohit, Advocate appearing on behalf of the defendants pleaded no instructions and did not appear on 14.12.2005. Learned trial Court ought to have sent the SPC/summons to the defendants before proceeding ex-parte, therefore, the first appellate Court has rightly remanded the case by placing reliance over the judgment passed by the Apex Court in the case of Malkiat Singh & another vs. Joginder Singh and others (1998) 2 SCC 206 . He further submits that in the case of passing of ex-parte decree the defendant has three recourses open i.e. either he may prefer a first appeal under section 96 or he may apply for review of the judgment or he may apply for setting aside the ex-parte decree within 30 days. All the 3 remedies are concurrent and can be prosecuted concurrently. In support of his contention he has placed reliance over the decision in the case of Ansari Sakeenabi vs. Maligi Modeensab ILR 1997 KAR 1909. He has also placed reliance over the judgment passed by the Apex Court in the case of Lal Devi and another vs. Vaneeta Jain and others (2007) 7 SCC 200 and prayed for dismissal of this appeal. 7. Facts are not in dispute that the defendants appeared in the suit, filed the written statement and thereafter issues were framed. On 16.11.2006 the counsel appearing for the defendants pleaded no instructions and the Court proceeded ex-parte. 7. Facts are not in dispute that the defendants appeared in the suit, filed the written statement and thereafter issues were framed. On 16.11.2006 the counsel appearing for the defendants pleaded no instructions and the Court proceeded ex-parte. Thereafter on 14.12.2005 the plaintiffs recorded their evidence and closed the evidence. Thereafter the Court fixed the case for final arguments on 15.05.2005. On 16.12.2005 the defendants filed an application under Order 9 Rule 7 CPC and vide order dated 24.12.2005 the Court has dismissed the application filed under Order 9 Rule 7 CPC and the ex-parte judgment and decree have been passed. Against the order of rejection of the application under Order 9 Rule 7 CPC the defendants filed a writ petition before this Court but later on the same was withdrawn and thereafter a fresh application under Order 9 Rule 7 CPC was filed and that too has been dismissed by Civil Judge Class-I, Badwaha. The defendants did not challenge the order rejecting the application under Order 9 Rule 7 but chose to file a first appeal under section 96 of the CPC against the ex-parte judgment and decree. It is correct that the defendants had an option either to file an application under Order 9 Rule 13 CPC challenging the ex-parte judgment and decree or file a review under Order 47 Rule 1 CPC or file a first appeal under section 96 CPC. Once the application under Order 9 Rule 7 CPC has been dismissed and the ex-parte decree has been passed then the defendants had a remedy to file an application under Order 9 Rule 13 CPC and after rejection of such an application the further remedy of appeal under Order 47 Rule 1 CPC was available. The grounds for setting aside of the ex-parte decree are provided under Order 9 Rule 13 itself which are reproduced below: 13. The grounds for setting aside of the ex-parte decree are provided under Order 9 Rule 13 itself which are reproduced below: 13. Setting aside decree ex parte against defendants-- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also (Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs' claim). 8. According to the aforesaid provision, the defendants may apply to the Court for setting aside of the ex-parte decree. If he satisfies the Court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called for hearing, the same Court may set aside ex-parte decree. Therefore, the remedy of setting aside of the ex-parte decree is provided under Order 9 Rule 13 CPC. If the defendant wishes to challenge the judgment and decree on merit without alleging that the summons was not duly served or he was prevented by any sufficient cause from appearing when the suit was called for hearing, on merit, then he can file a regular first appeal under section 96 CPC and in the present case the defendants instead of filing of the application under Order 9 Rule 13 CPC filed a regular first appeal under section 96 CPC. An appeal under section 96(2) CPC is a statutory right for which the defendants cannot be deprived of availing such statutory right merely on the ground that earlier the application filed under Order 9 Rule 13 CPC was dismissed, therefore, in either case of non filing of an application under Order 9 Rule 13 or after filing and its rejection, the defendant has a right to avail the statutory remedy of appeal under section 96 CPC but vice versa is not permissible. When the defendants filed an appeal under section 96 of the CPC against the ex-parte decree and if the said appeal has been dismissed the defendants cannot file an application under Order 9 Rule 13 CPC because the original decree passed in the suit merges with the decree of the appellate Court. Recently, in the case of N.Mohan vs. R.Madhu AIR 2020 SC 41 the Apex Court has held as under: 12. Learned counsel for the parties have addressed us at length and cited several authorities in support of their respective submissions. We are satisfied that having regard to the facts and circumstances of the case this appeal ought to be allowed and the exparte decree set aside. 13. It is no doubt true that when the suit was called out before the Court of the learned District Judge counsel for the parties ought to have been present in Court. If on account of any unforeseen or unavoidable reason it was not possible for the defendant or his counsel to be present in Court, courtesy demanded that a representation ought to have been made before the Court by any other counsel so that the Court was informed that the counsel engaged were busy in the High Court. If such a request was made, we have no doubt that the learned District Judge would have accommodated counsel for the defendant. It is not unusual for the lower Courts to accommodate counsel on whose behalf a representation is made about their absence on account of remaining pre-occupied before the High Court. We have no doubt that the counsel for the defendant were remiss in not showing even the minimum courtesy expected of them. It is not unusual for the lower Courts to accommodate counsel on whose behalf a representation is made about their absence on account of remaining pre-occupied before the High Court. We have no doubt that the counsel for the defendant were remiss in not showing even the minimum courtesy expected of them. It was argued on behalf of the appellants before us that the two advocates engaged by the defendant miscalculated and under the impression that the other would be attending the Court neither of them made an effort to send someone to the Court of the District Judge to make a representation on their behalf. 14. However, it is equally true that soon after the Court heard arguments and reserved judgment to be delivered later in the day, counsel for the defendant appeared before him and filed an application and prayed that the order may be recalled and the matter may not be proceeded with ex-parte. The District Judge however refused to grant the prayer and held the application to be not maintainable. He thereafter proceeded to pass a judgment and decreed the suit for specific performance on the same day. 15. Having regard to the totality of circumstances we are of the view that in the interest of justice this appeal must be allowed. The learned District Judge recorded evidence, heard arguments and posted the matter later in the day for delivery of judgment. If the Court had adjourned the proceedings to another day after deciding to proceed ex-parte, the defendant could have applied for being permitted to participate in the proceedings. In this case since everything happened on the same day the defendant did not get an opportunity to do so. The learned District Judge decided to proceed ex-parte. It thereafter examined the witnesses present in Court and proceeded to hear arguments. It reserved its judgment to be pronounced later in the day. Even before he could pronounce judgment counsel for the defendant had moved an application before him for recall of the order. The learned District Judge decided to proceed ex-parte. It thereafter examined the witnesses present in Court and proceeded to hear arguments. It reserved its judgment to be pronounced later in the day. Even before he could pronounce judgment counsel for the defendant had moved an application before him for recall of the order. It is true that in view of the law laid down by this Court in Arjun Singh (supra) the learned District Judge could not have entertained an application under Order IX Rule 7 C.P.C. We have also no hesitation in observing that counsel of the defendant were not careful enough to inform the learned District Judge about their pre-occupation before the High Court which prevented them from being present in his Court when the case was called for hearing. But the passing of an ex-parte decree in a case of this nature is too harsh a consequence to be upheld. The defendant cannot be made to suffer an ex-parte decree particularly when he was not at fault, having duly instructed his counsel to appear before the Court of the learned District Judge. 16. We are not delving into the technicalities of the legal questions argued before us because we are of the view that in the facts of this case the interest of justice demands that the ex-parte decree be set aside. We appreciate that the learned District Judge could not entertain an application under Order IX Rule 7 C.P.C., and even the application under Order IX Rule 13 was dismissed as not pressed. But nothing prevented the High Court from setting aside the ex-parte decree in the appeal preferred against it. 9. The Division Bench of this Court in the case of Rasiklal Manikchand Dhariwal (supra) has held that the grounds available under Order 9 Rule 13 CPC for setting aside of the ex-parte decree cannot be raised in first appeal filed under section 96 CPC against the ex-parte decree. Para-26 of the said judgment is reproduced below: 26. We have already set out the details with regard to the conduct of the defendants and non co-operation also to the extent that when the defendants were called upon to cross examine the witnesses, their counsel withdrew stating that Court could proceed in the manner it liked. Para-26 of the said judgment is reproduced below: 26. We have already set out the details with regard to the conduct of the defendants and non co-operation also to the extent that when the defendants were called upon to cross examine the witnesses, their counsel withdrew stating that Court could proceed in the manner it liked. Since the case was reserved for judgment, learned counsel has submitted by reference to the decision of the Supreme Court in Arjun Singh vs. Mohindra Kumar and others, AIR 1964 SC 993 that once a case is reserved for judgment, Order 9, Rule 7 does not apply. The contention that ex parte decree must be passed on the basis of the reliable evidence, founded on the judgment of the Supreme Court in Smt. Sudha Devi vs. M.P Narayanan and others, (1988) 3 SCC 366 has already been taken into consideration. Large number of witnesses have been examined and documents exhibited showing prior user of the mark by the plaintiff. Under these circumstances, it cannot be said that the judgment is not based on any admissible evidence or evidence on record. In the case of ex parte decree, in an application under Order 9, Rule 13, the defendant may question the correctness of the order posting the case for ex parte hearing and may contend that he had sufficient and cognet reasons for not being able to attend the hearing of the suit on the relevant date. However, these two grounds cannot be raised in a First Appeal against the ex parte decree under section 96. In the First Appeal under section 96, the defendant on the merits of the suit can contend that the materials brought on record by the plaintiff were not sufficient for passing a decree in his favour or that the suit was not otherwise maintainable. We have referred to the submissions made by the parties and in view of the scope referred to by the Supreme Court in Bhanu Kumar Jain vs. Archana Kumar and another, (2005) 1 SCC 787 , we find that on merits of this case also decree could have been passed. We have referred to the submissions made by the parties and in view of the scope referred to by the Supreme Court in Bhanu Kumar Jain vs. Archana Kumar and another, (2005) 1 SCC 787 , we find that on merits of this case also decree could have been passed. We may also record that once it is proved that a large quantity of the product has been commercially provided in a particular area, it is not necessary in a passing off action to prove that actual sale of the product has, in fact, taken place. 10. The only issue for consideration in this appeal is whether the first appellate Court can consider the grounds for setting aside the ex-parte decree which are available under Order 9 Rule 13 CPC and remand the case to the trial Court? The power of remand is available to the first appellate Court under Order 41 Rule 23, 23(A) & 27 of the CPC. 11. In case of Purushottam Reddy V/s. Pratap Steels Ltd : (2002) 2 SCC 686 , the apex Court has considered the scope of Order 41 Rule 23 and 23-A of the C.P.C. and has held as under : “It was a settled position of law before 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section 151 of the CPC to order a remand it such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 11 of the CPC. In cases where additional evidence is required to be taken in the event of any one of the clause of Sub-rule (1) of Rule 27 being attracted such additional evidence oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send it to the appellate court. In 1976, Rule 23A has been inserted in Order 41 which provides for a remand by an appellate court hearing an appeal against a decree if (i) the trial court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate court can exercise the same power of remand under Rule 23A as it is under Rule 23. On twin conditions being satisfied, the appellate court can exercise the same power of remand under Rule 23A as it is under Rule 23. After the amendment all the cases of wholesale remand are covered by Rule 23 and 23A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand. It is only in exceptional cases where the court may now exercise the power of remand de hors the Rules 23 and 23A.To wit the superior court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20 Rule 3 or Order 11 Rule 31 of the CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for rewriting the judgment so as to protect valuable rights of the parties. An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or Rule 25 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore must be avoided.” 12. In another case of Municipal Corporation, Hyderabad V/s. Sunder Singh : (2008) 8 SCC 485 , the apex Court has again considered the power of appellate Court in the case of remand. The operative part of the said judgment is reproduced below : “Before invoking the provision regarding remand of a case by the Appellate Court under Order 41, Rule 23, Civil Procedure Code the conditions precedent laid down therein must be satisfied. Order 41, Rule 23 would be applicable when a decree has been passed on a preliminary issue. The appellate court must disagree with the findings of the trial court on the said issue. Only when a decree is to be reversed in appeal, the appellate court considers it necessary, remand the case in the interest of justice. It provides for an enabling provision. It confers a discretionary jurisdiction on the appellate court the court should loathe to exercise its power in terms of Or. 41 R. 23 of the Code of Civil Procedure and an order of remand should not be passed routinely. It provides for an enabling provision. It confers a discretionary jurisdiction on the appellate court the court should loathe to exercise its power in terms of Or. 41 R. 23 of the Code of Civil Procedure and an order of remand should not be passed routinely. It is not to be exercised by the appellate court only because it finds it difficult to deal with the entire matter. If it does not agree with the decision of the trial court, it has to come with a proper finding of its own. The appellate court cannot shirk its duties.” 13. In case of Murari Lal V/s. Ram Kumar Ojha : 2015 (1) MPLJ 243 , this Court has recently considered the scope of Order 41 Rule 23 and 23-A of the C.P.C and has held that the appellate Court upon consideration of the pleadings and material brought on record in the event reaches the conclusion to reverse the findings of the trial Court, then only can apply its mind as to whether the circumstances warrant retrial. Para 11 of the said judgment is reproduced below :- “11. The scope and nature of jurisdiction conferred on Appellate Court under Order XLI, Rule 23 and Order XLI Rule 23-A, Civil Procedure Code are well settled as observed in the opening part of the order. The ingredients of Order XLI, Rule 23-A, Civil Procedure Code are two fold, firstly; the Appellate Court upon consideration of the pleadings and material brought on record by way of oral and documentary evidence in the event reaches the conclusion to reverse the findings of the trial Court; only thereafter, and secondly; it has to apply its mind as to whether the circumstances warrant retrial. Upon fulfilment of these two requirements, the provisions of Order XLI, Rule 23, Civil Procedure Code can be applied in the matter of remand of the case.” 14. It is clear from the aforesaid that the first appellate Court can remand the suit to the trial Court only after reversal of the decree. Under Order 41 Rule 23A CPC where the civil Court has disposed of the suit otherwise than on a preliminary point and the first appellate Court has reversed the decree in appeal and found that a retrial is necessary then the appellate Court may remand the suit as provided under Order 41 Rule 23. Under Order 41 Rule 23A CPC where the civil Court has disposed of the suit otherwise than on a preliminary point and the first appellate Court has reversed the decree in appeal and found that a retrial is necessary then the appellate Court may remand the suit as provided under Order 41 Rule 23. In the present case the trial Court has passed the decree on merit but the first appellate Court has not reversed the judgment and decree on merit and simply held that the trial Court has wrongly proceeded ex-parte against the defendants by placing reliance over the judgment passed by the Apex Court in the case of Malkiat Singh (supra). The case of Malkiat Singh was travelled up to the Supreme Court after rejection of the application under Order 9 Rule 13 CPC and not after dismissal of regular first appeal. The Apex Court has considered the scope of Order 9 Rule 13 CPC and set aside the judgment and decree, therefore, the facts of the present case are distinguishable. The first appellate Court ought to have considered the appeal on merit and in case the appellate Court finds it to be a fit case for reversal then only it can remand the case to the trial Court. 15. In view of the foregoing discussion, the appeal is allowed, the impugned judgment is set aside and the matter is remitted back to the first appellate Court for deciding the appeal on merit.