Respondents filed a suit for eviction in respect of shop situated at Batmaloo Srinagar and for recovery of arrears of rent at against the revision petitioner-defendant. The suit was decree in ex-parte on 30.5.2002 by 2nd Additional Munsiff Srinagar. Against the judgement and decree defendant filed an appeal alongwith an application for condonation of delay as the appeal was delayed beyond prescribed period. The 3rd Addl; District & Session Judge dismissed the application for condonation of delay and consequently the appeal, by his order dated 17.6.2003. This order of dismissal is under challenge in this revision petition.

Plaintiff-respondents counsel has raised a preliminary objection to the maintainability of the revision on the ground that with the dismissal of the appeal by file appellate court the Judgement and decree of the trial court has merged with the order of the appellate court. Against the order of dismissal of the appeal 2nd appeal would lie on grounds specified thereto under section 100 CPC but no revision would lie against the order.

Counsel for the revision petitioner submits that the judgement and decree of the trial court has not merged with the order of dismissal of the application for condonation of delay of the appellate court, in as much as, by dismissal of the application while holding the appeal time barred the appeal is not upheld on merits therefore the question of merger does not arise. Against the order of dismissal of an application for condonation of delay in filing the appeal by the appellate court revision is competent as no appeal is provided therefor. In this case as the decree is not reversed or modified or confirmed on merits it cannot be said that the decision of the trial court has merged with the decision of appellate court. Even after the dismissal of the application for condonation in preferring the appeal beyond prescribed time the decision of the trial court is subsisting and operative. The Doctrine of merger does not apply to a case of the present nature wherein appellant court in exercise of its discretionary jurisdiction has rejected the prayer for condonation of delay.

Kunhayammed v. State of Kerala, AIR 2000 SC 2587, in terms dealing with the question of doctrine of merger in the context of exercise of special jurisdiction of Supreme court under Article 136 of the Constitution of India, is not applicable to this case.

Rejection of application for condonation of delay and consequent dismissal of time barred appeal is not a decree, in as much as, the trappings of a decree as defined in Section 2(2) of CPC are not attached to such decision.

In Rattan Singh v. Vijay Singh, AIR 2001 SC 279 it is observed:-

"In order that decision of a Court should become a decree there must be adjudication in a suit and such adjudication must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit and such determination must be of a conclusive nature. If those parameters are to be applied then rejection of application for condonation of delay will not amount to a decree. Consequently, dismissal of an appeal as time barred is also not a decree. We are aware that some decisions of the High Courts have taken the view that even rejecting an appeal on the ground that it was presented out of time is a decree within the meaning of the said definition. We are also aware of the contrary decisions rendered by High Courts on the same point......... We have no doubt that the decisions rendered by the High Courts holding the contrary view do not lay down the correct principle of law."

Coming to the merits of the revision petition, parties are heard.

There is no dispute that the appeal against the trial court decree is time barred. The delay is about 30 days. The application for condonation of delay is dismissed on the ground that the reveision petitioner failed to exercise due care and diligence to file appeal, when he was although aware and had the knowledge, about t

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