The captioned second appeal is filed by plaintiffs

feeling aggrieved by judgment and decree of Courts below

in summarily non-suiting plaintiffs by invoking under Order

23 Rule 3A of CPC.,

2. For the sake of brevity, the parties are referred

as they are ranked before the Trial Court.

3. Plaintiffs have instituted a suit for declaration and

injunction in O.S.No.343/2009.

4. The defendants on receipt of summons tendered

appearance and filed written statement and contended that

the present suit is not at all maintainable and therefore,

filed an application under Order 23 Rule 3A of CPC.,

seeking to dismiss the suit as not maintainable. Trial Court

has allowed the application and dismissed the suit. Trial

Court initially rejected this application. It appears that

defendants filed a review application. Trial Court while

considering the application has not only reviewed its order

but consequently, dismissed the suit.

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5. Feeling aggrieved by the decree, plaintiffs

preferred

an

appeal

before

Appellate

Court

in

R.A.No.45/2014. The Appellate Court has also proceeded

to dismiss the appeal on the ground that an appeal under

Section 96 of CPC., is not maintainable against the order

passed on review petition. These concurrent orders are

under challenge at the instance of the plaintiffs.

6. The appeal is liable to be admitted on a short

point.

Whether findings of the Appellate Court

that since order passed on review petition is

under challenge, an appeal under Section 96 of

CPC., is not maintainable is perverse, palpably

erroneous?

With consent, though appeal is admitted, the

same is taken up for final hearing as the dispute revolves

around narrow compass.

8. It is a trite law that first appeal is a statutory

right and Appellate Court being the final fact finding

6

Authority has to examine the disputed question of facts as

well as question of law. The findings of the Appellate

Court that an order passed on an review petition does not

amount to decree is not at all maintainable. The Trial

Court on review petition has not only reviewed its order

but consequently, the suit is dismissed. Once suit is

dismissed as not maintainable, it finally adjudicates rights

of plaintiffs. The plaintiffs under impugned order passed by

the Trial Court are virtually non-suited on the ground that

suit is not maintainable. Therefore, findings of the

Appellate Court that an order passed under review petition

is not appelable appears to be perverse and palpably

erroneous. The findings of the Appellate Court that

plaintiffs have questioned the order passed on interim

application is also found to be misconceived. Trial Court at

first instance rejected application filed by defendants under

order 23 Rule 3A of CPC. The defendants sought for

dismissal of suit as not maintainable. On review

application, Trial Court allowed the review application and

dismissed the suit. The order passed on review application

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has determined the rights of parties. Trial Court has

dismissed the suit as not maintainable and the same has

to be construed as judgment. Therefore, on this short

point, the second appeal is liable to be allowed.

Consequently, the substantial question of law framed by

this Court is liable to be answered in the affirmative.

9. For the foregoing reasons, I pass the following;

ORDER

The second appeal is allowed.

The matter stands remitted to the

Appellate Court. Since parties are represented

by their counsel, they are directed to appear

before the Appellate Court on 17.10.2022

without awaiting any further notice from the

Appellate Court.

The Appellate Court is hereby directed to

dispose of appeal in accordance with law within

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a period of two months since the dispute

revolves around narrow compass.

Sd/-

JUDGE

NBM