THOMAS P. JOSEPH, J.

1. The scope of enquiry by the appellate court in an appeal arising from ajudgment and decree passed exparte is raised for a decision in this SecondAppeal.

2. Respondent sued the appellants, her mother and brother forpartition and separate possession ofthe share claimed by herin the suitproperty which originally belonged to the late Joseph, her father. Appellantsresisted the suit and raised a counter claim contending that respondent wassent in marriage giving her share in the family property andthereafter,appellants effected partition of the suit property as per document No.2669 of 2006. The prayer in the counter claim is for a declaration that the said partitiondeed is valid and for other reliefs. The case came up for trial on 23.10.2009.That day, appellants and counsel remained absent. Appellants were set exparte.Respondent produced Exts.A1 to A3 and on the strength of those documentsand the affidavit filed by her, a preliminary decree for partition was passed. Thecounter claim was dismissed. Appellants filed I.A.Nos.1189 and 1190 of 2009 toset aside the exparte decree and to condone the delay in filing the application.Those applications were dismissed.Appellants challenged theexpartejudgment and decree in the Sub Court, Pala in A.S.No.88 of 2010. There,appellants prayed for a remand of the case explaining the circumstances underwhich they happened to be absent in the trial court on the day of trial. LearnedSub Judge dismissed the appeal. Hence this Second Appeal urging by way ofsubstantial questions of law whether in an appeal filed against the expartedecree, is it not in the interest of justice that as per Order XLI, Rule 23 of theCode of Civil Procedure (for short, "the Code"), the case is remanded to givethe appellants an opportunity to substantiate their contentions and whether, it islegally justifiable that since the petition to set aside the exparte decree isdismissed by the trial court, the prayer for remand cannot be allowed?

3.It is contended by the learned counsel that appellants hadjustifiable reason for their absence in the trial court on the day of trial which thefirst appellate court has not taken into account. It is also contended by thelearned counsel that there is nothing which prevented the first appellate courtfrom remanding the case to the trial court for fresh decision after givingappellants opportunity to adduce evidence.

4.It is not disputed that on account of absence of appellants andcounsel trial court decided to hear the suit exparte. Acting upon the evidence letin by the respondent, a decree for partition was passed in her favour. Thecounter claim was dismissed.

5.The question is whether in an appeal arising from the judgmentand decree passed exparte, it is open to the appellate court to considerwhether appellants were prevented by sufficient cause from appearing in thetrial court when the suit was called on for hearing.

6.This Court, referring to the decisions of other High Courts held inBava@ Asees v. Madhavan & Others (1995 (2) KLJ 706) that aparty is not entitled to ask the appellate court to accept the appeal (filed underSec.96(2) of the Code) on a ground which he could urge in an application underRule 13 of Order IX of the Code and request for a remand of the case for re-hearing.That decision was referred to and relied on by a Division Bench inAbdul Azeez v. Shareefa Beevi (1997 (1) KLT 8). In an appeal arisingfrom an exparte order of eviction passed under Act 2 of 1965, the DivisionBench held that in an appeal filed against the order of eviction whether exparteor on merit, appellant can succeed only on merit establishing that the order ofeviction is illegal on the materials available on record and not for the reason thathe was denied the opportunity to contest the petition for eviction.

7.A later Division Bench, in Ajith Mathews v. SheelammaThomas (2011 (2) KLT 225) though without reference to the decision ofthe Division Bench referred supra, did not approv