SADRUDDIN JIVABHAI JAFARI Vs. JAIN ENTERPRISES

JUDGEMENT

(1.) Heard. Admit. Taken up for final hearing by consent of the parties.

(2.) This appeal is preferred by landlord against order of the learned Single Judge holding that the lower appellate Court was justified in holding that the application under Order IX Rule 13 of the Code of Civil Procedure was not maintainable but remanding the matter to the District Judge, Gondia to decide the appeal in accordance with law. The suit filed by the appellant before the Civil Judge Senior Division, Gondia for eviction, possession and arrears of rent was proceeded ex parte and eventually decreed. The tenants preferred an appeal against the ex parte decree along with an application for condonation of delay. They also filed an application under Order IX Rule 13 of the C.P.C. for setting aside the ex parte decree. The District Judge, Gondia dismissed the application for condonation of delay in filing the appeal against the ex parte decree and the civil suit was also dismissed. Thereafter, the trial Court i.e. Civil Judge Senior Division, Gondia dismissed the tenant s application under Order IX Rule 13 of the C.P.C. for setting aside the ex parte decree.

(3.) The tenants, therefore, preferred Misc. Civil Appeal before the District Judge, Gondia against the order rejecting their application under Order IX Rule 13. The appellantlandlord raised a preliminary objection to the maintainability of this appeal on the ground that after dismissal of the regular appeal against the ex parte decree, the application under Order IX Rule 13 of the C.P.C. was bound to be dismissed in view of explanation to Order IX Rule 13 and, therefore, the Misc. Civil Appeal under Order XLIII Rule 1A of the C.P.C. against the order rejecting application under Order IX Rule 13 was itself not tenable.