1.0. Present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant-original plaintiff (now heirs and legal representatives of original plaintiff) to quash and set aside the impugned judgment and order passed by the learned Additional District Judge, Bhavnagar dated 30.10.2010 passed in Regular Civil Appeal No. 50 of 2008, by which, the learned Additional District Judge, Bhavnagar has dismissed the said appeal preferred by the original plaintiff confirming the order passed by the learned trial Court passed in Civil Miscellaneous Application No. 37 of 2008 passed under Order 9 Rule 13 of the Code of Civil Procedure by quashing and setting aside the ex-parte judgment and decree passed in Regular Civil Suit No.1751 of 2006.
2.0. It appears that father of the appellant-original plaintiff
-Rameshchandra Manshukhlal Trivedi instituted Regular Civil Suit No.1751 of 2006 against the respondent herein original defendant in the Court of learned Civil Judge, Bhavnagar for eviction decree under Section 12(3) of the Bombay Rent Act. It appears that learned trial Court partly decreed the suit ex-parte and therefore, original defendant submitted Civil Miscellaneous Application No. 37 of 2008 before the learned Civil Judge, Bhavnagar to quash and set aside the ex-parte judgment and decree under Order 9 Rule 13 of the Code of Civil Procedure. That the said application came to be allowed by the learned trial Court by quashing and setting aside the ex-parte judgment and decree passed in Regular Civil Appeal No.1751 of 2006. Being aggrieved and dissatisfied with the order passed by the learned Additional Civil Judge, Bhavnagar passed in Civil Miscellaneous Application No. 37 of 2008 in quashing and setting aside the ex-parte judgment and decree and restoring the suit to the file, the original plaintiff preferred Regular Civil Appeal No.15 of 2008 before the learned District Court, Bhavnagar and the learned Additional District Judge, Bhavnagar by impugned judgment and order has dismissed the said appeal confirming order passed by the learned trial Court allowing Civil Miscellaneous Application No. 37 of 2008 and quashed and set aside the impugned judgment and decree passed in Civil Suit. Being aggrieved and dissatisfied with impugned judgment and order passed by the learned Appellate Court, the appellant herein as heirs and legal representatives of the original plaintiffs have preferred present Second Appeal.
3.0. When a pointed question was asked to the learned advocate for the appellant how the present Second Appeal under Section 100 of the Code of Civil Procedure is maintainable against the impugned judgment and order passed by the learned Appellate Court which was arising out of the order passed by the learned trial Court passed under Order 9 Rule 13 of the Code of Civil Procedure, Shri Patel, learned advocate for the appellant is not in a position to satisfy the Court with respect to the maintainability of present Second Appeal against the impugned judgment and order passed by the learned Appellate Court. Even otherwise, this Court is also of the opinion that against the impugned judgment and order passed by the learned Appellate Court dismissing the appeal confirming the order passed by the learned trial Court passed under Order 9 Rule 13 of the Code of Civil Procedure, Second Appeal is not maintainable as the order passed by the learned trial Court passed by the learned trial Court passed under Order 9 Rule 13 of the Code of Civil Procedure cannot be said to be a decree. Under the circumstances, the present Second Appeal is not required to be entertained as the same is not maintainable. It will be open for the appellant to initiate appropriate proceedings against the impugned judgment and order which can be considered in accordance with law and on merits.
4.0. In view of the above and with above liberty, present Second Appeal is not entertained and is accordingly dismissed without further entering into the merits of the case and / or expressing anything on merits. As and when, any appropriate proceedings are initiated against the impugned order, the same be considered in accordance with law and on merits.
sd/-
( M. R. Shah, J. ) "kaushik"