Satish Chandra, J.
1. This is a defendant's, Second Appeal.
2. The plaintiff-respondent brought Suit No. 424 of 1967 for the ejectment of the defendant-appellant for A shop and for recovery of arrears of rent and damages. The suit ultimately came up for hearing on 27th November, 1971, after several adjournments granted at the instance of the defendant. On this day the court proceeded to hear the suit under Order XVII Rule 3, C.P.C. After hearing the plaintiff it decreed the suit for ejectment and for arrears of rent end damages.
3. The defendant applied under Order IX, Rule 13, C.P.C for the setting aside of the decree dated 27th November, 1971. The learned Munsif, by an order dated 5th February, 1972, held that the judgment was pronounced under Order XVII, Rule 3, against which an appeal Lay, and there is no provision for setting it aside under Order IX. The application was dismissed.
4. The defendant, on 7th February, 1972 filed another application under Section 151, C. P. C. for the recalling of the order dated '5th February, 1972. This application was rejected by the learned Munsif on 28th March, 1972.
5. On 6-4-72 the defendant then filed an appeal against the order dated 5th February, 1972, which, had dismissed the application under Order IX, Rule 13, C.P.C. The appeal was not directed against the original decree dated 22nd November, 1971. This appeal was beyond time. The defendant filed an application under Section 5, Limitation Act, for the condonation of delay.
6. The learned District Judge held that there was no sufficient cause for condoning the delay because even if the defendant's case that he was down with typhoid fever from March, 26 to April 3, 1972, be accepted, yet he had failed to explain the delay of three days namely, 3rd, 4th and 5th April, 1972. The application under Section 5, Limitation Act, was rejected and the appeal was dismissed as time-barred.
7. Aggrieved, the defendant came up to this Court. Initially he intended to file a civil revision, but later on it appears that at his own instance filed it as a second appeal after paying the requisite court-fee of Rs. 67/25 P.
8. In my view the second appeal is not maintainable. The second appeal is directed against a first appellate order, which in its turn was in respect of a decision of a miscellaneous application. Since the trial court's decree dated 27th November, 1971, was not questioned in first appeal but only the order dated 5th February, 1972, dismissing the application for restoration was impugned, the appeal before the lower appellate court was a miscellaneous appeal. Hence no second appeal will lie against the disposal of such a miscellaneous appeal--vide Section 104(2), C.P.C. Only a revision will be maintainable. Since the defendant had initially thought of filing a revision and since sufficient court-fee has been paid, I have treated this appeal to be a civil revision tinder Section 115, C.P.C.
9. Coming to the merits, the only question is whether there was sufficient cause for the delay. The question is concluded by a finding of fact.
10. Learned counsel, however, argues that the learned District Judge overlooked the fact that the District Court was closed on 5th April, 1972, on account of Chehlum. The appeal hence could not be filed on that day and was rightly filed on 6th April, 1972. He also urged that though the applicant was ill, nonetheless he came to court on 3rd April, 1972. He instructed his counsel for filing the appeal. From the record it appears that the defendant applicant swore an affidavit in support of the stay application on 3rd April, 1972, There was hence no reason why the appeal could not, with due diligence, be filed on that very day or an 4th April. In the affidavits filed in support of the application under Section 5, Limitation Act, before the learned District Judge, no explanation whatsoever was given for not filing the appeal either on 3rd or 4th April, or even 5th April, 1972. There was no allegation there that the court was closed on the 5th April, 1972. Assuming however, that it was closed, yet there is no explanation for not filing the appeal on the 3rd or 4th April, 1972. It cannot possibly be said that the finding suffers from: any jurisdictional defect or error so as to entitle this Court to interfere under Section 115, C.P.C.
11. The defendant applicant filed an application under Section 39/40 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. It prayed that the benefit of these provisions be given to the defendant applicant in this case.
12. Section 39 of the said Act reads as follows:--
'39. Pending suits for eviction relating to -buildings brought under regulation for the first time.
In any suit for eviction of a tenant from any building to which the old act did not apply, pending on the date of commencement of this Act, where the tenant within one month from such date of commencement or from the date of his knowledge of the pendency of the suit, whichever the later, deposits in the court before which the suit is pending, the entire amounts of rent and damages for use and occupation (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord's full costs of the suit, no decree for eviction shall be passed except on any of the grounds mentioned in the proviso to Sub-section (1) or in Clauses (b) to (g) of Sub-section (2) to Section 20, and the parties shall be entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary:
Provided that a tenant, the rent payable by whom, does not exceed twenty-five rupees per month need not deposit any interest as aforesaid.'
13. This provision confined itself to a pending suit The defendant applicant further relies on Section 40 also which says:--
'40. Pending appeals in suits for eviction to buildings brought under regulation for the first time,--
Where an appeal or revision arising out of a suit for eviction of a tenant from any building to which the old Act did not apply is pending on the date of commencement of this Act, it shall be disposed of in accordance with the provisions of Section 39 which shall mutatis mutandis apply.'
14. Section 40 applies to 'an appeal or revision arising out of a suit for eviction......... pending on the date of commencement of this Act.' If so, it is to be disposed of in accordance with the provisions of Section 39.
15. To my mind the appeal or revision contemplated by Section 40 is one in which the question of ejectment of the defendant is liable to be considered, with the result that the appellate or re-visional court is entitled to either pass or affirm or negative a decree for eviction.
16. If an appeal or revision is directed against an ancillary or supplemental proceeding which, does not entitle the appellate or the revisional court to go into the merits of the case or to; touch a decree for eviction, if any, which1 has already been passed in the suit, there will be no occasion for it to consider the question whether a decree for eviction should be passed, much less will there arise an occasion for the appellate or the revisional court to pass a decree for eviction on any of the grounds mentioned in the proviso to Sub-section (1) or in Clauses (b) to (g) of sub-section (2) of Section 20. This is part of the function which by Section 39 is imposed upon the appellate or revisional court. The appellate or revisional court has to see whether the case is covered by the Proviso to subsection (1) or by Clauses (b) to (g) of subsection (2) to Section 20. If so, it shall allow a decree for eviction to remain or to affirm it. If not, it will pass a suitable order on the merits, either affirming or upsetting a decree for eviction. The appellate or revisional court, therefore must be in a position to look into and decide on the merits of the decree for ejectment so as, to enable it to see, as to on what grounds was the decree passed, and whether the grounds are covered by the mentioned provisions.
17. In a revision like the present where the only question is whether the lower appellate court's order holding that there was no sufficient cause for delay in filing the appeal was within its jurisdiction or suffered from material irregularities, there is no occasion whatever to go behind that order and look into the merits of the trial court's decree for ejectment. In fact that decree could not be questioned even by the lower appellate court while dealing with the miscellaneous appeal filed before it.
18. If, for instance, the present revision succeeds on the merits and the lower appellate court's order dismissing the appeal as time-barred is set aside, the matter will go 'back. The lower appellate court will then consider whether the appeal was liable to succeed on merits, namely, whether the trial court was justified in rejecting the application, for restoration. If that succeeds, the case will have to go back to the trial court, because even then in the miscellaneous appeal pending before the lower appellate court it will have no jurisdiction to consider the merits of the decree for ejectment dated 27th November, 1971, because that decree was not the subject-matter of the appeal at all.
19. In my opinion Sections 39 and 40 are not attracted to the present case, and hence their benefit cannot be extended to the defendant applicant. The application moved under those provisions is accordingly dismissed.
20. As already observed there is no merit in the revision which fails and is accordingly dismissed with costs.