A party who has not contested a suit in the trial court has a right of appeal under Section 96 of the CPC against an ex parte decree passed against them.

( 1 ) THIS appeal is admitted on the following substantial questions of law :" (0 Whether the party having not chosen to contest the suit in the trial court and has a right of appeal under Section 96, CPC? (ii) Whether in view of the provisions of Order 8, Rule 10, CPC no appeal could be preferred by the defendant? (iii) Whether the lower Appellate Court had made out a new case against the pleadings of the parties? (iv) Whether the decree passed by the lower Appellate Court is against the provisions of law and is perverse?"

( 2 ) BEFORE adjudicating upon the questions of law, facts giving rise to this appeal are necessary : the plaintiff-appellant has filed a civil suit that the suit land bearing Survey No. 18, having an area of 1. 872 hectares situated in village Padrat. Tehsil and District Vidisha is held by him as Bhumiswami. The plaintiff pleaded that the suit land originally belonged to his father Karan Singh and cousin Veersingh. The plaintiff is using this land continuously for grazing his cattle. The suit land can be used by the plaintiff only for agricultural purpose. The plaintiff's ancestors were holding the suit land on zamindari and after the abolition of Zamindari under the Madhya Bharat Zamindari Abolition act, the suit land was recorded as Khudkasht. The land was partitioned prior to abolition of zamindari. After partition, the suit land had fallen in the share of the plaintiff. Two years prior to filing of the suit, the plaintiff has cultivated over two Bigha of the suit land and harvested the crop. Defendant No. 2-State of madhya Pradesh without inviting any objection or proclamation allotted the suit land to village Chowkidar on lease. This lease is of service land. The plaintiff also claimed his title through adverse possession,

( 3 ) THE defendant No. 2-State of Madhya pradesh was proceeded exparte in the trial court. However, defendant No. 2 Devi filed his written statement and denied the claim of the plaintiff and pleaded that any share of the government land in partition will not confer any right, title or interest to the plaintiff. The government after following rules has allotted lease of the suit land to the ex-Chowkidar.

( 4 ) THE trial Court decreed the suit of the plaintiff. However, an appeal by the defendant-state of M. P. . the suit was dismissed holding therein that the suit land on the date of abolition of proprietory rights was recorded as 'charnoi' and the 'charnoi' land has vested in the State under Section 41 of the Madhya bharat Abolition of Zamindari Act.

( 5 ) NOW, I proceed to decide the question of law No. (i ). Any party may not choose to contest the suit in the trial Court, if on perusal of the plaint, the party had a feeling that the suit is liable to fail. But once an adverse order is passed ex parte the aggrieved party has a right to file an appeal. Section 96 of the Code of Civil Procedure provides that an appeal shall lie from every decree passed by any Court exercising original jurisdiction, to the Court authorised to hear appeals from the decisions of such Court. Sub-section (2) of Section 96, CPC also provides that an appeal may lie from an original decree passed exparte. The decree passed by the trial Court was ex parte. Therefore, under Section 96 (2), cpc ex parte decree can be challenged. Accordingly, even if a party has not chosen to contest the suit in the trial Court, it has a right of appeal under Section 96, CPC. Substantial question of law No. (i) is answered accordingly.

( 6 ) FOR deciding the substantial question of law No. (II) an interpretation of Order 8, rule 10, CPC is necessary. Order 8, Rule 10 cpc is reproduced below :"where any party from whom a written statement, if required, fails to present the same within the time permitted or fixed by the Court. the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit. "it thus provides that where any party which has to file written statement under Ord