A person affected by an ex parte decree has two rights: to apply to set aside the decree under Order 9 Rule 13 C.P.C. by showing sufficient cause, or to file an appeal showing the illegality of the judgment and decree.

R.L.Anand, J.

1. Shree Navneet Priya Shamji Maharaj Society, through its President Shri Sohan Lal Gosain, has filed the present R.S.A and it has been directed against the judgment and decree dated 7.5.1999, passed by the Additional District Judge, Gurgaon, who set aside the ex-parte judgment and decree dated 15.10.1999, passed by the trial Court against the respondent Shri Chuni Lal and others.

2. Shree Navneet Priay Shamji Maharaj Society, through its Secretary, Shri S.K. Goswami, filed a suit for declaration and injunction praying that trust namely Shri Shyamji Maharaj Trust, New Delhi, created by defendants No.2 to 10, was illegal, unauthorised and had no sanctity in the eyes of law and that defendants No.1 to 10, had no right to interfere in the affairs of the Mandir Shree, Navneet Priya Shamji Maharaj and injunction was also granted by the trial Court in favour of the plaintiff against the defendant No.2 to 10 from entering into the Mandir premises and from interfering in the affairs of the Mandir etc. and defendants were also directed to account for the amount taken by them illegally.

3. It may also be mentioned here that the suit was filed by Shri Navneet Priya Shamji Maharaj Society through Shri S.K. Goswami against ten defendants including defendant Shri Chuni Lal Sharma, who was defendant No.9 in the trial court.

4. Shri Chuni Lal Sharma filed the first appeal before the Court of Additional District Judge, Gurgaon. It may also be mentioned here that some of the defendants also filed an application under Order 9 Rule 13 C.P.C. for setting aside the exparte decree.

5. When the appeal came up for hearing before the first appellate Court, it vide judgment and decree dated 7.5.1999, set aside the ex parte decree so far as Shri Chuni Lal Sharma was concerned and gave the directions to the trial Court to allow the defendant Shri ChuniLal Sharma, to cross-examine the witnesses of the plaintiff and further allowed the defendant No.9 to lead evidence in support of his case and then to dispose of the matter according to law.

6. Aggrieved by the judgment and decree of the first appellate Court, dated 7.5.1999, the present appeal has been filed by the plaintiff. I have heard the learned counsel for the parties and with their assistance have gone through the record of the case.

7. The learned counsel for the appellant has submitted that the first appellate Court has not given any opportunity to the plaintiff to establish that there was no sufficient cause on behalf of defendant No.9 not to appear before the trial Court. He submitted that in the absence of any issue or evidence, it was improper on the part of the Additional District Judge, Gurgaon to set aside the judgment and decree vis-a-vis Shri Chuni Lal Sharma, defendant No.9.

8. I do not subscribe with the argument of the learned counsel for the appellant. When an ex parte decree is passed, two rights open to a person who is affected by the ex parte decree; one is Under Order 9 Rule 13 C.P.C. for setting aside the exparte decree showing the sufficient cause and the second is that he can also file an appeal showing the illegality of the judgment and decree and the interim proceeding which merged into the judgment and decree. In this case defendant Shri Chuni Lal Sharma, engaged a counsel, issues Were struck, written statement was filed on behalf of the defendants. This shows the bona fides of the defendant No.9 that he always wanted to contest the suit. If the lawyer of defendant No.9 had not cross-examined the witnesses of the plaintiff and the lawyer did not inform defendant No.9 to bring his evidence, such litigant should not suffer for a fault of the lawyer.

9. In these circumstances, I do not find any illegality in the impugned judgment dated 7.5.1999, passed by the learned Additional District Judge, Gurgaon. The reasons advanced by the first appellate Court in paras No. 10 to 12 are quoted below:-

"10. I have considered the above referred arguments and gone throu