( 1 ) MR. Yatin Soni, learned Advocate for the respondent has argued this matter two days in instalments and he covered major part of his arguments. However, today though the matter was called out repeatedly he did not remain present. Therefore, the judgment is proceeded with.

( 2 ) THE present revision application is filed by the original plaintifflandlord against the order dt. 24-1-1991 passed by the learned 2nd Extra assistant Judge, Ahmedabad (Rural) at Mirzapur in Civil Revision Application no. 3 of 1990 which was filed by the original defendant (tenant) against the order dt. 31-1-1990 passed by the learned 2nd Joint Civil Judge (J. D.), mirzapur dismissing the Restoration Application No. 87 of 1980.

( 3 ) THE facts of the case in brief are that the petitioner-plaintiff has filed the Regular Civil Suit No. 540 of 1983 against the respondent (original defendant) under Sec. 28 of the Bombay Rent Act for recovering the possession of the suit premises on the ground of arrears of rent, bona fide requirements and change of user. In the said suit summons was served on the defendant and he filed written statement (Ex. 8) on 29-9-1983. Thereafter the defendant did not remain present. The issues in the said suit were framed at Ex. 9 on 3-2-1984. Even the plaintiff-landlord took out an application at Ex. 20 under Sec. 11 (4) of the Bombay Rent Act on 12-10-1984. A copy of the said application was also served on the defendant as it was sent Under Certificate of Posting. Thereafter the plaintiffs evidence was recorded at Ex. 23. However, neither the orginal defendant nor his Advocate remained present and ultimately ex-parte decree in the aforesaid suit was passed on 16-10-1985. The said decree was executed on the original defendant in Execution Application No. 52 of 1987 on 16-12-1987 and according to the landlord on the next day, i. e. , on 17-12-1987 the suit premises were let out to another tenant.

( 4 ) INSPITE of this the Restoration Application No. 87 of 1988 was filed by the defendant on 1-1-1988 along with an application for condoning the delay in filing the restoration application. After condoning the delay the said application was heard and it was dismissed by the learned trial Court judge. Against the said decision the aforesaid Revision Application was filed. It came to be allowed. Hence the present C. R. A.

( 5 ) THE first contention raised by Mr. Yatin Soni, learned Advocate for the respondent is that the revision application under Sec. 29 of the Bombay rent Act is not maintainable and it should be a revision application under sec. 115 of the C. P. C. It may be stated that that so far as the nomenclature is concerned, the petitioner has filed this revision application under Sec. 29 (2) of the Bombay Rent Act as well as under Sec. 115 of the C. P. C.

( 6 ) MR. Soni, learned Advocate for the petitioner while raising this preliminary objection has submitted that as the restoration application is filed under Order IX Rule 13 of the C. P. C. Revision Application only under sec. 115 of C. P. C. would lie. It may be mentioned that so far as Sec. 29 of the Bombay Rent Act is concerned, sub-sec. (1) provides for appeal from a decree or order made by the Court exercising jurisdiction under sec. 28 of the Act. In the proviso to said sub-section certain exceptions are given in respect of which no appeal would lie. There is not a single exception which provides that no appeal would lie against the order refusing to restore the suit after setting aside the ex-parte decree. Therefore, appeal under Sec. 29 (1) would lie. So far as sub-sec. (3) of Sec. 29 is concerned, it provides that Where no appeal lies under this section from the decree or order in any suit or proceeding in the City of Ahmedabad the Bench of two Judges and elsewhere the District Court, may for the purpose of satisfying itself that the decree or order made was according to law, call for the case in which such decree or order was made and pass such ord