Shri Sanjay K. Agrawal, J.

1. The substantial questions of law involved, formulated and to be answered in the appeal preferred by defendant No.1, are as under :

“(1) Whether the trial Court is justified in rejecting the application under Order 9, Rule 7 of the CPC by order dated 13-02-2002 by recording a perverse finding?

(2) Whether the trial Court further justified in granting application under Section 151 of the CPC on 17-03-2003 filed by the plaintiffs and thereby declined to take the written statement filed by the defendant on record?”

2. In order to answer the substantial questions of law, following facts are required to be noticed.

(I) The respondents/plaintiffs preferred a suit for declaration of title and declaration of sale deed dated 29-08-1996 to be null and void and for permanent injunction in respect of suit land. The present appellant/defendant No.1 and deceased defendant No.2 Roop Lal whose name was deleted from the plaint subsequently due to his death, both engaged their counsel jointly to put appearance before the trial Court on their behalf. The counsel engaged by defendant No.1 pleaded no instructions on 03-05-1997 and consequently, the trial Court declared ex-parte against him on the same day. Thereafter, he filed an application under Order 9, Rule 7 of the CPC for setting aside the ex-parte order which was rejected on 13-02-2002. However, the Trial Court directed that defendant No.1 can participate in further proceedings of the suit. Thereafter, defendant No.1 filed his written statement and counter claim on 11-04-2002 which was taken on record but the plaintiffs filed an application under Section 151 of the CPC that the written statement filed by defendant No.1 be excluded from consideration as he has already been proceeded ex-parte. That application filed under Section 151 of CPC was allowed by the trial Court on 17-03-2003 and it was held that written statement is excluded from consideration finding that defendant No.1 has already proceeded ex-parte. Against the order dated 17-03-2003, the petitioner filed Writ Petition No.1502 of 2003 but before the writ petition could be decided, the Civil Suit was decreed on 15-01-2008 and thereafter, the writ petition was withdrawn on 14-01-2009. First Appeal preferred by defendant No.1 was also dismissed by the First Appellate Court by its judgment and decree dated 21-07-2015. Feeling aggrieved against the judgment and decree of the First Appellate Court affirming the decree granted by the trial Court, Second Appeal has been preferred in which substantial questions of law formulated have already been incorporated in the opening paragraph of this judgment.

3. Shri A.K. Prasad, learned counsel for the appellant/defendant No.1 would submit that the trial Court is absolutely unjustified in proceeding ex-parte on 03-05-1997 and further unjustified in rejecting his application filed under Order 9, Rule 7 of the CPC ignoring the fact that good cause was shown by defendant No.1 for not appearing on 03-05-1997, as on that date his counsel who was duly engaged by him pleaded no instructions without prior notice to the present appellant/defendant No.1 and as such the trial Court is absolutely unjustified in rejecting the application under Order 9, Rule 7 of the CPC. He would further submit that the trial Court by its order dated 17-03-2003 is also unjustified in excluding the written statement from consideration as proceeding ex-parte under Order 9, Rule 7 of the CPC would not bar him (defendant No.1) to file written statement and counter claim. Therefore, the decree passed by the trial Court duly affirmed by the First Appellate Court deserves to be set aside and substantial questions of law be answered in plaintiff's favour.

4. Shri Manoj Paranjpe, learned counsel for respondents No.1 to 3 would submit that the trial Court is absolutely justified in proceeding defendant No.1 ex-parte and rejecting the application filed under Order 9, Rule 7 of CPC as no good cause was sh