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

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