C L PARSHAD Vs. RANG PAL

JUDGEMENT

(1.) The appellant filed a suit for permanent injunction against the respondents on 30th of July, 1979, in which issues were framed on 8th of August, 1979, and the plaintiff was directed to bring evidence on 10th of August, 1979. On that date, the plaintiff did not bring any evidence and the case was adjourned to 14th of August, 1979, on payment of Rs. 20/- as costs. On 14th August, 1979, the case was not taken up as it was declared a holiday and was put up on 16th of August, 1979, when instead of fixing it for evidence, the Court proceeded to hear the case and since no witness of the plaintiff was present nor the costs of Rs. 20/- were paid, the evidence of the plaintiff was closed and the suit dismissed with costs.

(2.) Against the aforesaid judgment and decree, the plaintiff filed a first appeal before the District Judge. A preliminary objection was raised that no appeal was competent under Order 41 Rule 1 of the Code of Civil Procedure against an order passed by the trial Court under Order 17 rule 3. The first appellate Court upheld the preliminary objection. However, it proceeded to decide the appeal on merits and found that there was no force in any of the points raised with the result that vide order dated 21st of December, 1979, he dismissed the appeal. The plaintiff has come up in second appeal to this Court.

(3.) After hearing the counsel for the parties, I find that this appeal deserves to be allowed. The trial Court had dismissed the suit and had directed that the decree be prepared. The plaintiff filed an appeal with which he attached the final judgment of the trial Court as also the decree sheet put in the grounds of appeal he had throughout stated as if this appeal was from the order and not from the decree. The first appellate Court should not have seen the form of the grounds of appeal but should have seen the substance when the case was taken up on 16th of August, 1979, and the evidence of the plaintiff was not present and the costs of Rs. 20/- imposed earlier were not paid, the evidence was closed and the suit was dismissed and all this was done by the final judgment on the basis of which decree sheet was also prepared. Therefore, the plaintiff had filed the appeal against the decree and not against the proceedings taken under Order 17 rule 3 of the Code of Civil Procedure only. It is not disputed before me that appeal against the decree was competent before the District Judge and it is also not disputed that the proceedings taken by the trial Court in taking up the case on 16th August, 1979, in closing the evidence of the plaintiff on that date and declining any adjournment could be made as grounds of appeal against the final decree in view of Section 105 of the Code of Civil Procedure. Accordingly, I reverse the decision of the first appellate Court that no appeal was competent before it.