- (1.) BINOD Kumar Roy, J. The prayer off the petitioners-landlord-defendants of the suit filed for recovery of possession by respondent No. 1 tenant-plaintiff under Section 6 of the Specific Relief Act, 1963 which was decreed ex- parte by the trial court, is to quash the order dated 19-3-1979 passed by the IIIrd Additional Munsif, Mirzapur rejecting their application under Order IX Rule 13 of the Code of Civil Procedure (hereinafter referred to as the Code) and for setting aside the ex-parte decree as well as the appellate order dated 21-5-1980 passed by the District Judge, Mirzapur dismissing their Miscellane ous Appeal No. 81 of 1979.
(2.) THE portrayal of the relevant facts are in extremely narrow compass. By the impugned order dated 19-3-1979 the application filed under Order IX, Rule 13 of the Code was rejected only on the ground that the ex-parte decree had merged in the orders passed in the earlier appeal and revision which, however, were dismissed as not maintainable. The learned counsel for the petitioners submitted that since the earlier appeal and revision were dismissed as not maintainable the trial court has committed a jurisdictional error in refusing to exercise its jurisdiction vested under Order IX, Rule 13 of the Code by invoking the doctrine of merger which applies only in such cases in which the appeal and/or revision are maintainable and are decided on merit. Since the petitioner's earlier appeal and revision both were dismissed as not maintainable the petitioners had correctly invoked the jurisdiction of the trial court under Order IX, Rule 13 of the Code. The learned counsel for the respondent No. 1 on the other hand contended that valid reasons have been assigned by the courts below for rejecting the application under Order IX, Rule 13 of the Code besides since this writ petition has remained pending for about 15 years this Court should not exercise its discretion as it is open for the petitioners-landlord to file a suit for eviction of Respondent No. 1 in accordance with law.
(3.) IN my view the contentions made by the learned counsel for the petitioner are sound. The doctrine of merger, envoked by the trial court for rejecting the petitioner's application under Order IX, Rule 13 of the Code could have been applied only if the earlier appeal and revision were maintainable and not which were dismissed on account of their non-maintainability. The trial court has thus wrongly refused to exercise its jurisdiction under Order IX, Rule 13 of the Code.;