Find a Lawyer

Second Appeal No. 380 of 1976, decided on 10th January 1977.

‑‑‑ S. 100, O. XLI, r. 43 & O. XLIII, r. 1(u)‑Second appeal, main tainability of ‑Rejection of plaint‑‑Not disposal of suit upon a pre liminary point‑ Order of appellate Court setting aside order of trial Court rejecting plaint and directing trial Court to proceed with trial or its merits‑Not an order under O. XLI, r. 43, hence not appeal able under O. XLIII, r. Vu)‑[I L R 941 Nag. 629 dissented from).

I L R 1941 Nag. 629 dissented from.

Basheshar Nath v. Bidhi Chand A I R 1937 Lah. 380 ; 6 C L J 214 and Medras Province v. Laxmi Amma A I R 1945 Mad. 431 rel.

S. Y. Khawaja for Appellant.

Badarudduja Khan for Respondent No. 1

The question is whether this second appeal is maintainable. The plaint of suit filed by the respondent No. I against the appellant and others (Suit No. 1532/74), was rejected by the I Senior Civil Judge, Karachi on application under Order VII, rule 11, C. P. C. filed by the appellant/defendant by his order dated 30‑4‑75. The respondent No. 1 therefore, tiled first appeal against the said order to the III Addl. District Judge, Karachi, who allowed the appeal and remitted the suit to the trial Court for disposal according to law by his judgment dated 18‑3‑1x 76. It is against the said judgment that the present I appeal has been filed.

Mr. S. Y. Khawaja, learned Advocate for the appellant, submitted that the impugned order of the Appellate Court; is an order of remand under Order XLI, rule 23. C. P. C. and is therefore, appealable under Order XLIII, rule 1(u), C. P. C. If this position is correct, then only a Miscellaneous Civil Appeal would lie and not a 11 Appeal. It may be noted that a II appeal ca only lie under section 100, C. P. C. from a decree passed on appeal and as Mr. Badarudduja rightly submitted, the order of the I Appellate Court is not a decree,

In support of his submission that the impugned order is appealable. Mr. Khawja relied on I L R 1941 Nag. 629. This case appears to support him. Belt a contrary view has been taken by the Lahore High Court in A I R 1937 Lah. 380, following 6 C L J 21 that it was well settled that an order of an appellate Court setting aside an order of the trial Court. rejecting a plaint, and directing the trial Court to proceed with the trial of B the suit on its merits, is not an order under Order XLl, rule 43, C. P. C. and is not appealable under Order XLIII, rule I (u), C. P. C. This view finds supports in A I R 1945 Mad. 430 fn which the case‑law has been discussed and the Nagpur case was not approved I am inclined to agree with the reasoning of Horwill, J. in the Madras case. In my opinion, the case does not lie under Order XLI, rule 23, C. P. C. because the rejection of a plaint is not a disposal of a suit upon a preliminary point.

For the foregoing reasons I am of the opinion that IInd Appeal is not maintainable.

It is accordingly dismissed summarily.

S. A. H. Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.