In ex parte proceedings, the plaintiff has the burden of proof to prove his case, even though the defendant is absent. The court is not required to warn the plaintiff in advance that the evidence adduced is insufficient or unreliable.

( 1 ) THIS is a defendant's First Appeal against the ex parte judgment and decree dated 26-3-1976 by Shri J. D. Shrivastava, Third Addl. District Judge, Gwalior.

( 2 ) THE plaintiff's case as set out in the plaint is that be was carrying on business in bangles of glass, lac and plastic in a wooden stall erected by him on public-land near Ram Mandir, Phalke Bazar, Lashkar. On 8-11-1971 some employees of the defendant, Municipal Corporation Gwalior (which will hereinafter be referred to as 'the Corporation'), came to his shop to demolish the stall. Thereupon the plaintiff filed a suit for perpetual injunction against the corporation in the Court of First Addl. Civil Judge, Gwalior, to get the corporation restrained as C. S. No. 346-A 1973. He also applied for issue of temporary injunction. But the application for temporary injunction was ultimately rejected on 25-1-1973. The plaintiff has alleged that on 30-1-1973, the employees of the corporation demolished his wooden stall as a result of which the stock of bangles lying in the shop was destroyed. The employees, it is alleged took away all the goods lying in the shop along with the wooden structure. The plaintiff, therefore, claimed against the Corporation the price of his articles and stall assessed by him at Rs. 11,037. 75 P. The plaintiff further applied for permission to sue as a pauper. The permission was granted on 15-41976, on which date Shri P. C. Saxena, counsel for the Corporation, sought time for filing written statement on behalf of Corporation and the case was adjourned to 1-5-1976. However on the adjourned date i. e. on 1-5-1976 nobody appeared for the defendant and the court directed that the defendant be proceeded against ex parte. The case was adjourned to 23-6-1976, on which date the plaintiff examined himself in the absence of the defendant and closed his evidence. The learned Third Additional District Judge, Gwalior, decreed the plaintiff's suit in toto ex parte on that very day.

( 3 ) AGGRIEVED by the ex parte decree, the Corporation has filed this appeal. It has been argued by the learned Counsel for the appellant, in the first instance, that the ex parte decree may be set aside and so also the ex parte proceedings and the case be remanded and the appellant be allowed to file its written statement and contest the suit In the alternative he has submitted that the ex parte decree cannot be maintained on merits.

( 4 ) IT may be pointed out that no application was filed by the Corporation under order 9, Rule 13 for setting aside the ex parte decree and only an appeal has been preferred against it. There appears to be a conflict of opinion among various High Courts as to the power of the appellate Court to question the propriety of the ex parte order itself and to remand the case for re-trial. However we have a Bench decision of our own court reported in 1966 MP1j 507, (Ramlal v. Rewa Coal Fields Ltd.) wherein it has been held that an error, defect or irregularity which has affected the decision of the case may be challenged in appeal against the decree whether ex parte or otherwise. The appeal against the ex parte decree under Section 96 (2) of the Code of Civil procedure cannot be converted into proceedings for setting aside the decree with the concomitant duty of affording to the parties an opportunity of adducing evidence for and against any ground that may be raised in support thereof under Order 9, Rule 13, C. P. C. Nor can such an appeal be converted into an appeal under Order 43, Rule 1 (d), C. P. C. The reason is that when a particular remedy is provided for setting aside an ex parte decree and there is, by way of appeal, another special remedy against an order refusing to set it aside, these remedies and none other must be followed. Pandcy, J. speaking for the court observed as follows :--

"in our opinion, it is open to a defendant, who has filed an appeal against an ex parte decree under Section 96 (2) of the Code, to show from the rec