The main legal point established in the judgment is the interpretation of the provisions of Order 43 Rule 1 (w) of the Civil Procedure Code regarding the maintainability of an appeal when a review application has been dismissed.

Indermeet Kaur, J.

The order impugned before this Court is the order dated 31.08.2010. Contention before this Court is that vide order dated 31.08.2010, the court of Additional District Judge had heard an appeal under Order 43 of the Civil Procedure Code (hereinafter referred to as the Code?) against the dismissal of a review petition dated 19.02.2010; an appeal filed against an order which has dismissed a review petition is not maintainable under Order 43 of the Code. Attention has been drawn to Order 43 Rule 1 (w) of the Code which reads as under:-

"Order XLIII.

1. Appeal from orders.- an appeal shall lie from the following orders under the provisions of section 104, namely (w) an order under rule 4 of the Order 47 granting an application for review."

2. Vehement contention is that only where an order granting a review has been passed, an appeal is maintainable under Order 43 of the Code; however, if the order has dismissed a review application, the appeal under Order 43 of the Code is not maintainable. Thus the order dated 19.08.2010 is non-est and being void ab initio; it is liable to be set aside. It is contended that the reliance by the concerned court while recording the impugned order on the judgment of the Apex Court reported in AIR 1981 SC 1786 Shah Babulal Khimji Vs. Jayaben D. Kania and another was misplaced; in this case the Apex Court was concerned only with the right of the appellant under the Letter Patent jurisdiction. It is submitted that Additional District Judge in his order dated 31.08.2010 has assumed a jurisdiction upon himself which was not vested in him; the order suffers from an illegality and is liable to be set aside under the supervisory jurisdiction of this Court.

3. Arguments have been rebutted. It is submitted that the order dated 19.02.2010 was a review petition which had been partly allowed and partly dismissed ; the very fact that there was a partial allowance of the review petition makes it permissible for an appeal to be maintained under Order 43 Rule 1 (w) of the Code. The second submission is that since the impugned order dated 31.08.2010 has dismissed the suit of the plaintiff, the remedy is not a petition under Article 227 of the Constitution. On the applicability of the Judgment of Shah Babulal Khimji (Supra), learned counsel for the respondents has fairly conceded that the Additional District Judge in the impugned order dated 31.08.2010 has misapplied this judgment and the ratio of this judgment in fact related to the Letter Patent Appeal alone.

4. It is in this background that the respective submissions of learned counsel for the parties are to be considered.

5. The present suit is a suit for permanent injunction seeking a restraint against the defendants from interfering in the possession of the property i.e. municipal No. WZ-603 B Palam Village New Delhi. Two preliminary issues were framed in the said suit. They inter-alia read as follows:-

"1. Whether the plaint is liable to be rejected under section 41 (h) of the Specific Relief Act or not?

2. Whether the suit is liable to be stayed under section 10 of the Civil Procedure Code?"

6. Both these issues were decided in favour of the plaintiff. Vide order dated 18.08.2009, it was held that the suit is maintainable. The aggrieved party had gone in appeal. The High Court on 18.09.2009 had recorded the submission of the petitioner/defendant therein that he would seek a review of this order before the concerned Court; the petition accordingly had been dismissed as withdrawn with liberty to the party to move a review application before the concerned trial Court. On 19.10.2009, the review petition had been disposed of. This was a petition under Order 47 Rules 1 and 2 read with Sections 114 and 151 of the Code seeking a review of the order dated 18.08.2009. While disposing of the review petition, the order passed by the trial Judge on the preliminary issues was maintained but certain clerical mistakes and corrections were allowed; to that exten