Appeals against suits dismissed for default are not maintainable as there is no adjudication on merits, reaffirming the nature of ex-parte decrees.

JUDGMENT :

M.A. ABDUL HAKHIM, J.

1. These two Regular Second Appeals arise from two suits - O.S. No. 63/2007 and O.S. No. 69/2007 in which the subject matter is one and the same. The plaintiff in O.S. No. 63/2007 and the defendants in O.S. No. 69/2007 are the appellants.

2. O.S. No. 63/2007 was filed by the plaintiff for permanent prohibitory injunction against the defendant therein from causing any obstruction in the user of Plaint B Schedule property as way. The defendant in O.S. No. 63/2007 filed O.S. No. 69/2007 against the plaintiff in O.S. No. 63/2007 and four others for permanent prohibitory injunction, mandatory injunction, and damages on the allegations that the defendants widened the 4 feet gap to the Plaint D schedule property for passing through B and C schedules to the tarred road and they are liable to restore the gap to a width of 4 feet, not to trespass into Plaint A schedule property, not to commit waste or damage in the plaint schedule properties and to pay damages of Rs.5,000/-. The issue in both suits is regarding the width of the gap and pathway. According to the plaintiff in O.S. No. 63/2007, the gap is 4 feet, and according to the plaintiff in O.S. No. 69/2007, the gap is 2.25 meters. Plaint B schedule in O.S. No. 63/2007 is the Plaint D schedule in O.S. No. 69/2007. The defendants appeared in the respective suits and filed Written Statements.

3. Both the suits were ordered to be jointly tried, treating O.S. No. 63/2007 as the leading case. Both the suits were listed for trial on 01.02.2008. On that day, the plaintiff in O.S. No. 63/2007 and the defendants in O.S. No. 69/2007 were absent. The Trial Court appointed an Advocate Commissioner to record evidence of both sides with direction to complete the same on or before 08.02.2008. The plaintiff in O.S. No. 63/2007 and the defendants in O.S. No. 69/2007 did not cooperate to take evidence, and when the suits were taken on 08.02.2008, they were absent. Consequently, O.S. No. 63/2007 was dismissed for default and O.S. No. 69/2007 was decreed as prayed for, without setting the defendants ex-parte, but without adjudicating the matter on merits.

4. The plaintiff in O.S. No. 63/2007 filed A.S. No. 97/2008, and the defendants in O.S. No. 69/2007 filed A.S. No. 93/2008 before the First Appellate Court challenging the judgment and decree in the respective suits with Application to condone delay in filing the appeals. The First Appellate Court dismissed both Applications to condone delay, but the consequential judgments dismissing the appeals were not passed by the First Appellate Court. The appellants in both the appeals filed Writ Petitions in this Court challenging the Orders in the Applications to condone delay, and the Writ petitions were allowed condoning the delay on cost and on payments of cost, the First Appellate Court was directed to consider the appeals.

5. After payment of the costs, the First Appellate Court considered the appeals and dismissed both appeals, holding that the appeals were not maintainable. R.S.A No. 983/2011 is filed challenging the judgment in A.S. No. 93/2008 arising from O.S. No. 69/2007. R.S.A No. 1100/2011 is filed challenging the judgment in A.S. No. 97/2008 arising from O.S. No. 63/2007. Both the Appeals were admitted on the Substantial Questions of Law formulated in the Appeal Memorandum.

6. I heard the learned counsel for the appellants and the learned counsel for the respondent.

7. O.S. No. 63/2007 is dismissed for default consequent to the non-appearance of the appellant/plaintiff. In such a case, the remedy of the plaintiff is to seek restoration of O.S. No. 63/2007, invoking Order 9 Rule 9 of the Code of Civil Procedure. The judgment dismissing O.S. No. 63/2007 for default does not contain any adjudication of the matter. In such a case, there could not be any ground on merits against the said judgment, and the First Appellate Court will not be able to consider the merits of the case and the legality of the findings of the Trial Cou