RSA No.202/2007 Page 1 of 3 A-22 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Judgment: 13.12.2010 + RSA No.202/2007 & CM No.10927/2007(for stay) SMT.KIRAN ………..Appellant Through: Mr.D.P.Bhatia, Advocate. Versus SMT.VEENA KUMARI ……….Respondent Through: Mr.Y.P.Luckria, Advocate CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR, J. (Oral) 1. This appeal has impugned the judgment and decree dated 23.5.2007. Vide the aforestated judgment the order of the Civil Judge dated 7.4.2004 had been confirmed. On 07.4.2004, the Civil Judge had in a suit for mandatory injunction as also for possession and permanent injunction decreed the suit of the plaintiff ex parte. Thereafter on an application under Order 9 Rule 13 of the Code of Civil Procedure (hereinafter referred to as “the Code”) filed by the defendant, which application was dismissed on 28.3.2005. This order was impugned before the Additional District Judge. The order dated 28.3.2005 was confirmed; suit of the plaintiff stood decreed in terms of the judgment and decree dated 07.4.2004. 2. Record shows that the appeal had been admitted and the RSA No.202/2007 Page 2 of 3 substantial questions of law were formulated on 10.7.2009; they inter alia read as follows: “A. Whether the Trial Court is bound to issue notice in cases remanded back by the appellate court before the Trial Court? B. Whether any application under Order 9 Rule 13 of C.P.C. seeking setting aside of the ex-parte judgment and decree can be decided on the basis of pleadings only? C. Whether the court is bound to frame issue while deciding an application under Order 9 Rule 13 C.P.C. when the material proposition of facts is affirmed by one party and denied by the other? D. Whether the court is bound to invite parties to adduce evidence on the facts pleaded by one party and denied by the other party while deciding an application under Order 9 Rule 13 CPC.” 3. Learned counsel for the respondent has drawn the attention of this Court to the provisions of Order 43(1)(d). It is pointed out that under this statutory provision an appeal lies against an order under the provisions of Section 104 of the Code against an order passed under Order 9 Rule 13 of the Code. It is pointed out that in view thereof only an appeal under Order 43 of the Code could have been filed against the order of the dismissal of the application under Order 9 Rule 13 CPC which was dismissed on 28.3.2005. 4. This is amply borne out from this statutory provision. 5. The order of dismissal of the appeal under Order 43 (1)(d) is not amenable to the jurisdiction of this Court. A second appeal would not lie as the said order does not qualify as a “decree” under Section 100 of the Code. For this proposition learned counsel for the respondent has placed reliance upon a judgment of a Bench of this Court reported in 37(1989) DLT 67 Baldev Raj Gandok Vs. Kishan Singh Pasricha. Only remedy is to file a revision. 6. At this stage learned counsel for the appellant seeks permission of this Court to withdraw the appeal with permission to RSA No.202/2007 Page 3 of 3 seek appropriate legal remedy through appropriate legal forum. 7. The appeal is dismissed as withdrawn with liberty as prayed for. On the request of the learned counsel for the appellant, the time period spent in pursuing these proceedings bonafide shall be excluded for the purpose of limitation. Substantial questions of law are answered accordingly. 8. Appeal as also stay application is disposed of in the above terms. INDERMEET KAUR, J. DECEMBER 13, 2010 nandan