JAIN ENTERPRISES Vs. SADRUDDIN S/O JIVABHAI JAFARI

JUDGEMENT

(1.) RULE. Rule made returnable forthwith. The petition is heard finally as a notice for final disposal was issued to the respondents by an order dated 8.2.2011 and the respondents are duly served with the said notice.

(2.) THE respondent no.1 had instituted a suit against the present petitioners for arrears of rent and possession under the provisions of the Maharashtra Rent Control Act. An exparte decree was passed in favour of the respondent no.1 on 30.9.2008. After the execution proceedings were initiated by the respondent no.1, the petitioners filed an application before the trial court for setting aside the ex-parte judgment and decree dated 30.9.2008 under the provisions of Order 9 Rule 13 of Code of Civil Procedure. Simultaneously the petitioners also filed a substantive first appeal against the judgment and decree dated 30.9.2008 along with an application for condonation of delay in filing the appeal. The delay was not condoned and the first appeal consequently came to be dismissed. Since the trial court had also rejected the application filed by the petitioners under Order 9 Rule 13 of Code of Civil Procedure by the order dated 30.7.2010, the petitioners filed an appeal against the same under the provisions of Order 43 Rule 1(d) of Code of Civil Procedure. The District Judge 1 Gondia, however, by the impugned judgment dated 29.9.2010 dismissed the appeal filed by the petitioners on the ground that the same was not tenable.

(3.) SHRI Vastani, the learned counsel for the respondent no.1 supported the order passed by the District Judge -1 Gondia on 29.9.2010 and submitted that even otherwise, the petitioner could not have pursued the application under Order 9 Rule 13 of Code of Civil Procedure, as they had filed an appeal against the exparte judgment dated 30.9.2008, and it was dismissed in view of the dismissal of the application for condonation of delay in filing the appeal. The learned counsel for the respondent relied on the decision reported in 2001(1) Mh.L.J. Page 871 to substantiate his submission. The learned counsel for the respondent no.1 submitted that the fate of the appeal would have been the same, even if it was held to be tenable as in any case the same would have been dismissed on merits, in view of the law laid down in the aforesaid reported decision.