JUDGMENT : Goutam Bhaduri, J. Heard. 1. Challenge in this appeal is to the order dated 21/12/2021 passed by the 8th Additional District Judge, Raipur, in Civil Suit No.27A/2019, whereby an ex-parte decree for possession and partition was allowed. The plaintiff/respondent filed a suit for partition and the pleading show the claims were routed through a WILL in the initial plaint. The plaintiff claimed for 1/3rd share in respect of the suit property and possession was also claimed for. After notice the order-sheet of the Court below would show that time was sought for to file written statement by the appellant and eventually on 27/11/2019 since no appearance was made they were proceeded ex-parte. Subsequent, thereto the plaintiff/respondent amended the plaint and instead of 1/3rd share, half of the share was claimed and further money claim was also made. The said amendment was allowed and accordingly the prayer was amended. Subsequent to first amendment another amendment was also incorporated. So both the substantial amendments were carried out while the defendant appellant was ex-parte. Thereafter, the ex-parte judgment and decree was passed. 2. Learned counsel for the appellant would submit that when substantial amendment to the pleading and prayer was made, irrespective of the fact that earlier they were proceeded ex-parte, the appellant was required to be noticed again. He refers to the amendment application and the original prayer made in the plaint to show that substantial change including the change of claim to portion of share was made. Therefore, the defendant/appellant herein was not aware of those facts which would defeat the very right to defend such claim and will lead to bypassing the rules of natural justice. He placed his reliance in the case of Ramnik Vallabhdas Madhvani & others Vs. Taraben Pravinlal Madhvani { (2004) 1 SCC 497 } and further would submit that an application has already been filed under Order 9 Rule 13 CPC before the learned trial Court which is pending but that pendency of the application would not create a bar of hearing the appeal by this Court. He further placed his reliance in the case of Bhanu Kumar Jain Vs. Archana Kumar and Another { (2005) 1 SCC 787 } and further a recent judgment of G.N.R. Babu alias S.N. Babu Vs. Dr. He further placed his reliance in the case of Bhanu Kumar Jain Vs. Archana Kumar and Another { (2005) 1 SCC 787 } and further a recent judgment of G.N.R. Babu alias S.N. Babu Vs. Dr. B.C. Muthappa and others {2022 SCC OnLine SC 1158} and would submit that the appellant came to know about the ex-parte judgment and decree of 21/07/2022 though the decree was of 21/12/2021 and would submit that under these circumstances no substantial delay was caused. The counsel would submit that under the circumstances delay of 231 days in preferring the appeal may be condoned and the appeal may be allowed and suit be remanded to be adjudicated on its merits. 3. Per contra, learned counsel for the respondent would submit that the conduct of the appellant would be relevant for the reason that order-sheet demonstrates that despite sufficient opportunities granted, he did not file the written statement and after decree was passed, this appeal has been filed just to protract the trial and continue the litigation. He would further submit that the application under Order 9 Rule 13 CPC since is pending, separate appeal would not be maintainable and no sufficient reasons have been assigned to condone the delay, therefore, the appeal sans merit is liable to be dismissed. 4. We have heard learned counsel for the parties and perused the record. 5. The short question which falls for consideration as to whether after the substantial amendment in the plaint, if earlier the defendant have proceeded ex-parte, whether fresh notice would be required or not? 6. The records would show that the suit for partition and possession was filed which was valued at Rs.50 Lakhs by the respondent and the original prayer was for claiming 1/3rd share in a suit property and the possession thereof. The order-sheet of the Court below would show that after notice, the prayer was made to file the written-statement, which was allowed and during such proceeding on 27/11/2019 before filing the written-statement no one appeared on behalf of the appellant and appellant/defendants were proceeded ex-parte and case was fixed for ex-parte evidence on 25/01/2020. Before the evidence could be advanced, the ordersheet further would show that an amendment application was filed and perusal of the amendment petition would reflect that a monetary claim of Rs. Before the evidence could be advanced, the ordersheet further would show that an amendment application was filed and perusal of the amendment petition would reflect that a monetary claim of Rs. 1,75,163.83 was claimed and further apportionment of share instead of 1/3rd, ½ of share in the suit property was claimed. The said amendment was allowed on 17/08/2021 and accordingly the plaint was amended and case was fixed for evidence and subsequent thereto the ex-parte order was passed. 7. The amendment is of a plea contained in the pleadings and the object of allowing the amendment of pleadings is to determine the real questions in controversy between the parties. This means that the parties have to be given a chance to contest the questions in controversy and the court has to give its decision on it. The Supreme Court in the case of Ramnik Vallabhdas Madhvani & others Vs. Taraben Pravinlal Madhvani { (2004) 1 SCC 497 } has evaluated this aspect and has held that after the amendment is carried out, which has a trapping on the merits of the lis and the issue, then the parties are required to be noticed. In the instant case, after the amendment, which has a substantial bearing to change of claim of share as also addition of monetary claim the appellant was not made aware of it by notice. It was after the defendant proceeded ex-parte the amendment was carried out and apportionment of share in the suit of partition was claimed. Therefore, the petition of monetary claim along with the share in the property would have a substantial bearing to have a nexus to the nucleus of the issue. In absence of any notice thereof, the pleading would remain unchallenged and would amount to adjudication of claim of which the opposite party was not noticed, therefore, the substantial loss would be caused. Therefore, the natural justice cannot be given a back seat and to promote the procedural irregularities and merit must prevail to decide the case. Accordingly, we hold that after the fresh amendment was carried out which has a substantial bearing to the right of defendants, the defendant was required to be noticed and in absence thereof any decree cannot be sustained. 8. The subsequent issue which is raised that application under Order 9 Rule 13 CPC since is pending the appeal would not be maintainable. 8. The subsequent issue which is raised that application under Order 9 Rule 13 CPC since is pending the appeal would not be maintainable. We cannot agree to such submission of the respondent in view of the law laid down by the Supreme Court in the matter of Bhanu Kumar Jain Versus Archana Kumar and Another { (2005) 1 SCC 787 } wherein the Court has held thus at paras 25 to 28 as under:- 25. In an application under Order 9 Rule 13 of the Code, however, apart from questioning the correctness or otherwise of an order posting the case for ex-parte hearing, it is open to the defendant to contend that he had sufficient and cogent reasons for not being able to attend the hearing of the suit on the relevant date. 26. When an ex-parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex-parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9 Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex-parte decree passed by the trial court merges with the order passed by the appellate court, having regard to Explanation appended to Order 9 Rule 13 of the Code a petition under Order 9 Rule 13 would not be maintainable. However, Explanation I appended to the said provision does not suggest that the converse is also true. 27. In an appeal filed in terms of Section 96 of the Code having regard to Section 105 thereof, it is also permissible for an appellant to raise a contention as regard correctness or otherwise of an interlocutory order passed in the suit, subject to the conditions laid down therein. 28. It is true that although there may not be a statutory bar to avail two remedies simultaneously and an appeal as also an application for setting aside the ex-parte decree can be filed; one after the other; on the ground of public policy the right of appeal conferred upon a suitor under a provision of statute cannot be taken away if the same is not in derogation or contrary to any other statutory provisions. 9. 9. The said proposition is further been principally reiterated by the Supreme Court in the judgment of G.N.R. Babu alias S.N. Babu Vs. Dr. B.C. Muthappa and others {2022 SCC OnLine SC 1158} and the Court has held thus at para 8:- 8. This court held that though after dismissal of an appeal under Section 96 of CPC against ex parte decree, application under Rule 13 of order IX of CPC will not be maintainable, there is no bar on unsuccessful defendant adopting both the remedies simultaneously. In such a case, if the regular appeal against the decree is dismissed, obviously the application under Rule 13 of order IX of CPC cannot proceed. The reason is that explanation to Rule 13 of order IX of CPC lays down that where there has been an appeal against a decree passed ex parte and the appeal has been disposed of on any ground other than withdrawal, application for setting aside ex parte decree will not lie. However, in the event an application under Rule 13 of order IX of CPC is dismissed, the defendant can prosecute the appeal against the decree as a right to prefer appeal under Section 96 cannot be taken away in absence of any express provision to the contrary in CPC. In paragraph 38 of the aforesaid decision, this Court held that when application under Rule 13 of order IX of CPC filed by a defendant is dismissed, the defendant cannot be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex parte hearing and/or existence of a sufficient cause for non-appearance of the defendant. 10. In the instant case, the appeal as also an application under Order 9 Rule 13 CPC was preferred before the Court below, therefore, the right of the appellant's under Section 96 CPC cannot be taken away. Applying the aforesaid principles in the case, we hold that both the appeal as well as the application would be maintainable. 11. Now coming back to the question of limitation, as has been held that after the amendment the appellant was not noticed and, therefore, irregularity exists in passing of the decree received the notice of execution of decree on 21/07/2022 and the decree was dated 21/12/2021. Consequently, the appeal was filed with delay. 11. Now coming back to the question of limitation, as has been held that after the amendment the appellant was not noticed and, therefore, irregularity exists in passing of the decree received the notice of execution of decree on 21/07/2022 and the decree was dated 21/12/2021. Consequently, the appeal was filed with delay. Further, in the application under Section 5 of the Limitation Act valid reasons have been assigned. Considering the facts of this case as narrated above, we deem it appropriate to condone the delay. Accordingly, the application under Section 5 of the Limitation Act is allowed and the delay in filing the appeal is condoned. 12. In view of the foregoing discussions, the appeal is allowed, the judgment and decree is set aside. The parties shall appear before the Additional District Judge, Raipur on 28/03/2023. It is further observed that either of the parties shall not make any effort to prolong the case by seeking unnecessary adjournment. The appellant shall be at liberty to file the written statement within a period of 15 days from the date of appearance and thereafter the suit may be contested on merits. 13. There shall be no order as to cost(s).