Hon’ble Sudhir Agarwal, J.—Heard Sri R.C. Singh, learned counsel for the appellant and Sri H.S.N. Tripathi, learned counsel appearing for respondents.

2. The plaintiff’s Original Suit No. 2078 of 1996 proceeded ex parte and decreed by Trial Court vide judgment and decree dated 27.5.2000, whereagainst the defendants-respondents instituted Civil Appeal No. 15 of 2000 which has been allowed by Lower Appellate Court observing that Trial Court did not discuss the matter on merits. The Lower Appellate Court while allowing appeal not only has set aside Trial Court’s judgment but the suit has also been dismissed. Neither it has gone into the merits of the case nor has remanded the same to Trial Court permitting it to look into merits and, therefore, virtually the impugned appellate judgment has resulted in dismissal of suit without there being any decision on merits of the case.

3. It is no doubt true that even if no written statement is filed and the defendants have not contested the matter yet the plaintiff is not entitled for decree of suit inasmuch as he is under an obligation to prove his case and only then he can be granted relief and not otherwise.

4. Under Order VIII Rule 1