DEEN DAYAL Vs. RAM DUTT PUNETHA & ORS.

JUDGEMENT

(1.) THIS appeal is preferred under Section 100 of Code of Civil Procedure, 1908, and is directed against the judgment and order dated 25.8.2000 passed by Sri A.K. Saxena, the then learned I Addl. District Judge, Nainital, in Civil Appeal No. 52 of 1999, and also against the order dated 10.4.2002 passed by Sri Raj Krishna, the then learned Addl. District Judge/11 Fast Track Court, Nainital, whereby he has rejected the review petition against the order passed in appeal.

(2.) BRIEF facts of the case are that plaintiff-respondents filed earlier S.C.C. Suit No. 42 of 1989, against the defendant-appellant, in last round of litigation alleging the defendant to be tenant of the plaintiffs. The said S.C.C. Suit appears to have been de­creed by the learned Trial Court on 10.5.1993 but the defendant went in .revision and the revision (No. 41/ 1993) was allowed vide order dated 21.7.1997, and the decree passed by the Judge S.C.C. was set aside. Again, in this round of litigation, in respect of the same property i.e. house no. 104 in ward no. 4 (old No. 69 of ward no. 2) situated at Tanakpur, another suit (Civil Suit No. 44/1997) is filed by the plaintiff-respondents against the defendant-appellant for ejectment and damages, alleging the defendant to be un-authorized occupant in the premises in suit. It appears that de­fendant-appellant moved an applica­tion paper no. 20-C before the trial court with the request to reject the plaint under Order VII Rule 11 of the Code of Civil Procedure 1908, to which the plaintiff-respondents filed objection, and after hearing the par­ties the learned trial court allowed the application 20-C and rejected the plaint under Order VII Rule 11 of the Code vide its order dated 7.10.1999. The plaintiff-respondents then pre­ferred an appeal before the Lower Ap­pellate Court which was registered as Civil Appeal No. 52/1999, and after hearing the parties the same was al­lowed, and the order directing rejec­tion of plaint under Order VII Rule 11 of the Code of Civil Procedure was set aside vide impugned order dated 25.8.2000. It appears that a review petition, which was registered as Misc. Case No. 7/2000, was filed before learned Lower Appellate Court. How­ever after hearing the parties the same was also rejected vide order-dated 10.4.2002. Aggrieved by both the or­ders the present Second Appeal has been preferred by defendant.

(3.) LEARNED counsel for the re­spondents raised a preliminary objec­tion before this court that the appeal is not maintainable against the order passed in review petition. Order XLVII Rule 7(1) of the Code of Civil Proce­dure, 1908, is being quoted as under: "7. Order of rejection not appealable. Objections to order granting appli­cation.-(1) An order of the Court re­jecting the application shall not be appealable; but an order granting an application may be objected to an once by an appeal from the order granting the application or in an ap­peal from the decree or order finally passed or made in the suit." In view of the said provisions the present appeal as against the order passed on review application is not maintainable.