MIRZA ABDULLAH BEG Vs. RAMZAN KHAN

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for possession and arrears of rent. The suit was originally decreed on the 3 September 1920 against defendants Nos. 1, 5. On the 25 October 1920 defendants Nos. 1, 2 and 3 only appealed to the lower Appellate Court. The proceedings had been ex parte against defendants Nos. 4 and 5 and they preferred an appeal; they, were, however, made pro forma respondents in the appeal. While the appeal preferred on behalf of defendants Nos. 1, 3, to which defendants Nos. 4 and 5 were parties, was pending an application was presented in the original Court on behalf of defendants Nos. 4 and 5 on the 30 October 1920 for setting aside the ex parte decree. Certain objections were filed by the plaintiffs on the 15 November 1920, but in these objections no plea was taken that the Trial Court had no jurisdiction to set aside the decree on the ground that an appeal was already pending. On the 7th May 1921 the Court of first instance, apparently on the ground that the defence raised by the defendant was a common one, set aside the decree not only against the two defendants who had applied but against all the defendants and revived the suit. The suit having been revived the defendants who had appealed to the District Judge got a statement made through their Vakil before the District Judge that there was no longer any necessity for deciding the case and that the appeal should be struck off. The order passed by the Appellate Court was "appeal is dismissed according to the above statement."

(2.) When this suit was re-tried by the first Court it was dismissed on the merits. An appeal was preferred by the plaintiffs to the lower Appellate Court; but in the grounds of appeal again no point was Oaken that the order setting aside the decree was ultra vires, nor does it appear to have been argued before the lower Appellate Court as there is no reference to the point anywhere in the judgment. The appeal was dismissed on the merits, the lower Appellate Court coming to the conclusion that the plaintiffs had no right to the land and had never been in possession of it.

(3.) A second appeal has been preferred on behalf of the plaintiffs and two main points have been urged on their behalf. One is that the order setting aside the ex parte decree was ultra, vires inasmuch as an appeal had been preferred from that decree and was then pending and the second is that the Court below has erred in interpreting the document filed by the parties.