BABUBHAI RATANCHAND Vs. BAI SHARDA WD O MOTILAL JESINGBHAI
HIGH COURT OF GUJARAT
BAI SHARDA WD/O.MOTILAL JESINGBHAI
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(2.)THE petitioners herein are the original defendants 1 to 4 and respondents Nos. 1/1 to 1/7 are the heirs and legal representatives of the original plaintiff. Respondents Nos. 2 and 3 are the original defendants Nos. 5 and 6. THE plaintiff who was the landlord had filed a suit against the petitioners and respondents Nos. 2 and 3 in the Court of Small Causes Ahmedabad praying for a decree for eviction. THE learned Judge in the trial Court decided the matter on August 16 1966 and passed a decree for eviction and directed that the defendants should vacate the suit premises on or before December 31 1966 Against this judgment and decree of the trial Court there was an appeal which was to be disposed of by a Bench of two Judges of the Court of Small Causes and during the pendency of that appeal the plaintiff died on or about February 9 1969 After the death of the original plaintiff his advocate filed a purshis in the Court on February 24 1969 intimating about the death. A copy of the purshis was served on the learned advocate for the original defendants and thus by February 24 1969 the learned advocate for the defendants who were the appellants in the Court of Small Causes knew about the death of the deceased. On June 19 1969 out of the several appellants before that Court Appellant No. 1 got prepared his application for bringing the heirs of the deceased plaintiff on record. On the same date he also got prepared an application for setting aside the abatement of appeal as ninety days had expired since the death of the original plaintiff. THEse two applications one for bringing the heirs on record and the other for setting aside the abatement were filed in the Court on July 4 1969 THE affidavit in support of these two applications was also got prepared on June 19 1969 but no application for bringing the heirs on record or for setting aside the abatement was filed till July 4 1969 THE heirs of the original plaintiff filed an affidavit opposing the application for setting aside the abatement. THEy contended that the appellants were aware of the death of respondent No. 1 as news of his death were published in Gujarat Samachar a local news paper on February 10 1969 THE heirs further contended that appellant No. 1 before the Court below had actually attended the condolence meeting held in connection with the death of the original plaintiff. THEse allegations of the heirs of the deceased plaintiff were not denied by appellant No. 1 or by any one of the appellants by filing any affidavit-in-rejoinder and the learned Judges in the Court of Small Causes who heard the application for setting aside the abatement (Ex. 16) held that because of the omission to deny these facts as contended for by the heirs and legal representativeS of the original plaintiff it must be held that the appellants had come to know of the death of the deceased plaintiff some time on or about February 10 1969 or in any case on February 24 1969 since the endorsement on the purshis filed in the Court showed that the learned advocate for the original appellants had got a copy of the purshis on February 24 1969 THE learned Judges in the Court of Small Causes constituting the Bench of two Judges dismissed the application Ex. 16 as they were not satisfied that appellant No. 1 was prevented by any sufficient cause from making the application for bringing the heirs of the original plaintiff record within the meaning of Order 22 Rule 9 of the Civil Procedure Code.
Mr. Shah for the petitioners realising the difficulties in his way applied that the civil revision application should be converted into an appeal from order. Under Order 43 Rule 1 an appeal lies against an order under Order 22 Rule 9 refusing to set aside the abatement or dismissal of a suit. He therefore applied that this civil revision application should be treated as an appeal against the order refusing to set aside the abatement. I am unable to accept this application to entertain this matter as an appeal against the order. Against the judgment and decree of the learned Judge in the Court of Small Causes who exercised the jurisdiction conferred upon the Court of Small Causes Ahmedabad by sec. 28 sub-sec. (1) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 an appeal lies under sec. 29(i)(a) to a Bench of two Judges of the said Court but such Bench must not include the Judge who had passed the original decree or order under appeal. Under sub-sec. (2) of sec. 29 no further appeal shall lie against any decision in appeal under sub-sec. (i) but the High Court may for the purpose of satisfying itself that any such decision in appeal was according to law call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit. It is obvious that no appeal lies against the final order or decree dismissing an appeal or deciding an appeal on merits but only in an appropriate case a revision application can be entertained by the High Court under sec. 29(2) of the Rent Act. It is difficult to entertain the argument that though no appeal may lie against the final decree that may be passed in an appeal an appeal under Order 43 Rule 1 Civil Procedure Code will lie against an order refusing to set aside the abatement. An appeal from order under Order 43 Rule I would lie to the Court against which an appeal would lie against the final decree or judgment or order that may be pronounced in the suit or the proceedings. Since no appeal lies against the decision of the Bench of two Judges of the Court of Small Causes Ahmedabad against the final decree that may be passed in appeal in my opinion no appeal lies also against the order refusing to set aside the abatement. Under these circumstances I have not granted the application of Mr. J.J. Shah for converting this civil revision application into an appeal against order. [The rest of the judgment is not material for the reports.]
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