DAYA WANTI Vs. YADVINDRA PUBLIC SCHOOL

JUDGEMENT

(1.) WHETHER dismissal of an appeal or revision in limine has the effect of merging the lower Court's order in that of the Higher Court is the question referred by my brother A.P. Chowdhri, J. (since retired) before a larger Bench in view of the conflicting views expressed in two division Bench judgments of this Court. Before adverting to the core question as well as to ancillary questions which have been highlighted by the respective counsel, it would be appropriate to refer in brief the facts leading to the filing of Revision Petition No. 3247 of 1990, and its reference before the Full Bench.

(2.) BRIEFLY put, Smt. Dayawanti instituted a suit for possession and permanent injunction against the respondents alleging that she was owner in possession of the building in dispute on the basis of gift deed dated 31.3.1976. It was further stated by the petitioner -the plaintiff that during her absence in June, 1980, defendants - the respondents took illegal possession of the five quarters constructed in the house. So, she prayed for possession of the property in dispute as well as prayed for permanent injunction restraining the respondents from interfering in her possession of the main building as well as the vacant land appurtenant thereto. It so happened that despite number of opportunities granted by the Court the plaintiff failed to adduce any evidence and so the Court ordered that the plaintiff's evidence be closed in terms of Order 17 Rule 3 CPC. Resultantly, the suit of the plaintiff was dismissed. Appeal filed by the plaintiff was dismissed by the District Judge and the regular second appeal No. 975 of 1989 too was dismissed by this Court in limine on 10.8.1989. A review application was filed before this Court (application No. 50 -C of 1989)., which was disposed of with the following observations: -

(3.) THE learned counsel for the petitioner has argued that in view of the specific direction given by the learned Single Judge on his review application, the District Judge could not dismiss the same on the ground of its maintainability. Firstly, the course adopted by the learned District Judge was highly improper and otherwise too the impugned order of the District Judge is unsustainable in law, in view of the division Bench judgment in Matu Ram and Other's case (supra). According to the counsel. Dismissal of an appeal in limine does not amount to the merging of the judgment and decree of the lower appellant Court in that of this Court. Infact, when an appeal is dismissed in limine no decree is drawn up and so for all intents and purposes the decree of the lower appellate Court is executable.