1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.870 OF 2007 Balasaheb Ramchandra Patil ..Appellant V/s. Sukhadeo Govinda Kale & ors ..Respondents Mr.A.K.Suryavanshi, advocate, for appellant Mr.Surel S. Shah, advocate, for the respondent Nos.2 and 4 CORAM : A.S.OKA, J. DATE : 27TH MARCH, 2008 P.C. . Heard advocate for the appellant and advocate for the respondent Nos.2 and 4. The appellant is the original plaintiff. Suit filed by the appellant has been dismissed by passing the following order. “Today the matter is fixed for evidence and plaintiff failed to adduce evidence and preferred an application Exh.42 for adjournment and same application is rejected, considering pendency of 2 suit, I find “no substance” to wait for evidence of plaintiff. Therefore, suit is hereby dismissed. Parties to bear the costs.” 2. An appeal was preferred by the appellant before the District Court U/s.96 of the Code of Civil Procedure, 1908. The appeal has been dismissed as not maintainable on the ground that the order passed by the Trial Court cannot be termed as a decree within the meaning of Section 2 (2) of the said Code. 3. The submission of the advocate for the appellant is that the dismissal is not under Order IX or Order XVII of the said Code but it is on merits. He pointed out that the words “no substance” have been used in the impugned order. He, therefore, submitted that the suit will have to be treated as dismissed on merits which is a decree within the meaning of Section 2(2) of the said Code. 3 4. I have considered the submissions. On plain reading of Order dated 26th July, 2001, it is obvious that the order passed by the Trial Court appears to be in exercise of powers Rule 2 of Order XVII read with rule 8 of order IX of the said Code. Merely because the words “no substance” have been used, it cannot be inferred that the said words are used in relation to the merits of the suit. The words “no substance” relate to the prayer made for adjournment by the appellant/plaintiff and obviously, what the Court intended to say was that there was no substance in the prayer made for grant of adjournment. It is, therefore, obvious that the order being under Rule 2 of Order XVII read with rule 8 of order IX of the Code, a remedy will be available to the appellant to apply under Order IX for setting aside the order of dismissal. 5. Therefore, the Appellate Court was right in holding that the appeal was not maintainable. As 4 the appeal was not maintainable, Second Appeal cannot be entertained and same is required to be dismissed. 6. Subject to what is observed above, Second Appeal is dismissed. It is made clear that dismissal of the First Appeal as well as dismissal of the Second Appeal will not preclude the appellant from taking re-course of the remedy available under order IX of the Code of Civil Procedure, 1908. All the contentions of the parties in that behalf are expressly kept open. (A.S.OKA, J.)