The court upheld the ex parte decree based on sufficient evidence and affirmed the findings of the appellate court, deeming the cited case law irrelevant.

Dinesh Gupta, J.

This second appeal is preferred against the judgement dated 28.02.1978 passed by Additional District judge, Basti in Civil Appeal No. 230 of 1975 arising out of O.S. No. 66 of 1970.

2. The brief facts which give rise to this appeal are that the plaintiff respondent (hereinafter called, 'the respondent') filed Original Suit which was registered as O.S. No. 230 of 1975 for the relief of cancellation of sale deed dated 11.08.1969 and for possession if the plaintiff was found out of possession.

3. The suit was instituted on the sole allegation that the sale deed in question was obtained by impersonation and by placing some imposter in place of plaintiff and got executed the impugned sale deed.

4. The suit was contested by defendant-appellant (hereinafter called, 'the appellant') who filed a very cryptic written statement denying all the allegations made by the respondent. Later on the appellant absented herself from the proceedings of the Suit and the Suit proceeded ex parte and culminated into ex parte decree by which impugned sale deed was cancelled and Suit of the respondent was decreed.

5. The appellant filed appeal before the learned District Judge, which was transferred to the Court of Additional District Judge and registered as Civil Appeal No. 230 of 1975 and which was also dismissed vide their order dated 28.02.1978.

6. Feeling aggrieved the appellant filed present second appeal before this Court.

7. At the time of admission, substantial questions of law were framed, which were taken by the appellant in her ground to appeal which reads thus: -

(a)Because the defendant appellant having failed to appear on the date adjourned by the Court and her counsel having stated to have no instructions the trial court could either decree the plaintiff's suit ex parte or decide the Suit after consideration of the evidence of the parties only if the defendant appellant would have adduced her entire evidence or a substantial portion of the evidence and in the instant case the defendant appellant having neither adduced her entire evidence or a substantial portion of her evidence the trial court has no jurisdiction to dispose of the case on merit.

(b)Because the lower appellate court has committed substantial illegality in holding that the defendant appellant should have moved an application against the order of the trial court under Order IX rule 13 C.P.C.

8. Later on an application was moved on 25.09.2012 by the appellant for addition of substantial question of law and the Court vide order dated 07.11.2012 added following substantial question of law : -

(a)Whether judgement and decree of the trial court as affirmed by the appellate court is vitiated on account of non framing of issue and findings recorded as required under Rule 5 of Order XX CPC?

(b)Whether the lower appellate court was justified to record its independent findings while affirming the judgement and decree of the trial court and affirming the observations of the trial court which is not based on any trial?

9. Notices were issued to the respondent. However, in spite of service and appearance of counsel on behalf of respondent, when the case was listed for final hearing, the counsel for the respondent did not turn up and the appeal was heard in the absence of counsel for the respondent.

10. Heard learned counsel for the appellant.

11. Learned counsel for the appellant submitted that: -

The trial court has decreed the Suit ex parte and has committed an error of law in not giving its finding on each and every issue framed by the Court and also erred in not discussing the evidence available on record.

The court has committed illegality in pronouncing the judgement without giving any reasoned and cogent finding.

Even while passing an ex parte decree, the court should have given a detailed judgement giving finding on each and every issue.

That a person against whom an ex parte decree has been passed has two remedies either he can move an application under