C. M. NAYAR ( 1 ) THE PRESENT APPEAL HAS BEEN FILED AGAINST THE ORDER DATED 31/03/1992 PASSED BY SHRI G. S. JUGTI, Additional DISTRICT JUDGE, DELHI IN SUIR NO. 88/91. ( 2 ) THE FACTS BIEFLY STATED ARE THAT A SUIT FOR RECOVERY OF RS. 92,969. 00 WAS FILEDBY THE APPELLANT/plaintiff AGAINST THE DEFENDENT/respondent. THE APPELLANT HAD PLEADED THAT UNDER A CONTRACT, THERE WAS AN AGREEMENT TO SUPPLY 30 TICKETSOF AIR INDIA FOR THE LABOUR FORCE RECRUITED BY THE RESPONDENT FOR THEIR BAGHDAD PROJECTS INTERMS OF THE ORDERS OF THE RESPONDENT FOR THE VALUE OF RS. 1,29,870. 00. THE BILL NOS. 509-515 DATED NOVAMBER 17, 1984 FOR THE ABOVE SAID AMOUNT WERE RECEIVED BY THERESPONDENT. IN ACCORDANCE WITH THE ABOVE SAID BILLS, THE RESPONDENT ISSUED CHEQUE NO. 528272 DATED 18/12/1994, FOR RS. 1,29,870. 00 DRAWN ON STATE BANK OF India, Mohali, but on presentation, the said cheque was dishonoured. Despiterepeated demand, as contained in the letters, which were placed on record by theappellant, the respondent did not pay the amount due. It is further stated that videits letter dated 2/07/1985, the respondent had remitted to the appellant the partpayment of Rs. 70,000. 00 at Delhi vide Demand Draft No. 450905 dated 2/07/1985,drawn on State Bank of India, New Delhi, in favour of the appellant thereby leavinga sum of Rs. 59,870. 00 as balance. The appellant has claimed this amount as priceof the above said air tickets and also interest thereon at the rate of 15 per cent perannum as against the total amount of Rs. 1,29,870. 00 from November 17,198 4/07/1985 and on the balance amount of Rs. 59,870. 00 from 3/07/1985 till the date offiling the suit. ( 3 ) THE respondent filed written statement raising a preliminary objection thatthe suit was not maintainable on the ground that the Court had no jurisdiction andthe cause of action arose at Chandigarh and not at Delhi and also on the ground thatno amount was due from the respondent, apart from raising other pleas which findmention in the written statement. ( 4 ) THE following issues were framed on the basis of the pleadings of theparties. " (I) Whether plaintiff is a company incorporated under the Companiesact and plaint has been signed, verified and filed by a duly authorisedperson on its behalf as alleged? OPP (ii) Whether this Court has the territorial jurisdiction to try the suit asalleged? ( 4 ) THE following issues were framed on the basis of the pleadings of theparties. " (I) Whether plaintiff is a company incorporated under the Companiesact and plaint has been signed, verified and filed by a duly authorisedperson on its behalf as alleged? OPP (ii) Whether this Court has the territorial jurisdiction to try the suit asalleged? OPP (iii) Whether the suit is liable to be dismissed u/order 6 Rule 2 Civil Procedure Code asalleged, if so, its effect? OPD (iv) Whether plaintiff is entitled to recover any amount from the defendant, if so how much? OPP (v) Whether plaintiff is entitled to recover any interest. If so, at what rate,for what period and to what amount? OPP (vi) Relief. ( 5 ) THE issue on which the Trial Court proceeded to dispose of the matter wasissue No. 2 relating to the territorial jurisdiction for trying the suit. The onus of thisissue was placed on the appellant to prove that the Delhi Courts had territorialjurisdiction to try the case. The learned Judge heard Counsel for the parties anddiscussed the law on the subject and came to the conclusion that the Court in Delhihas no territorial jurisdiction to try the matter and decided issue NO. II against theappellant. The following finding was given in respect of relief, issue No. VI: "in view of the above findings, I hold that this Court has no territorialjurisdiction to try the case. Therefore, I dismiss the suit of the plaintiff,leaving the parties to bear their own costs. Decree sheet be prepared accordingly. "the appellant felt aggrieved by this order and has approached this Court by thepresent First Appeal. ( 6 ) I have heard learned Counsel for the appellant as well as for the respondent. The sole ground, which is canvassed by Counsel for the appellant is thathaving held that the Court has no territorial jurisdiction to try the case, the learnedadditional District Judge ought to have returned the plaint for proceeding underthe provisions of Order VII Rules 10 and IOA Civil Procedure Code The said provisions read asfollows: "o. VIIR 10. Return of plaint- (1) Subject to the provisions of Rule 10-A, theplaint shall at any stage of the suit be returned to be presented to the Court inwhich the suit should have been instituted. Return of plaint- (1) Subject to the provisions of Rule 10-A, theplaint shall at any stage of the suit be returned to be presented to the Court inwhich the suit should have been instituted. (Explanation: For the removal of doubts, it is hereby declared that a Court ofappeal or revision may direct, after setting aside the decree passed in a suit,the return of the plaint under this sub-rule ). (2) Procedure on returning plaint- On returning a plaint the Judge shallendorse thereon the date of its presentation and return, the name of theparty presenting it, and a brief statement of the reasons for returningit. " "r. 10a. Power of Court to Fix a date of appearance in the Court where plaintis to be filed after its return.- (1) Where, in any suit, after the defendant hasappeared, the Court is of opinion that the plaint should be returned, it shall,before doing so. Intimate its decision to the plaintiff. (2) Where an intimation is given to the plaintiff under Sub-rule (1), theplaintiff may make an application to the Court- (a) specifying the Court in which he proposes to present the plaintafter its return, (b) praying that the Court may fix a date for the appearance of theparties in the said Court, and (e) requesting that the notice of the date so fixed may be given to himand to the defendant. (3) Where an application is made by the plaintiff under Sub-rule (2), thecourt shall, before returning the plaint and notwithstanding that theorder for return of plaint was made by it on the ground that it has nojurisdiction to try the suit,- (a) fix a date for the appearance of the parties in the Court in whichthe plaint is proposed to be presented, and (b) give to the plaintiff and to the defendant notice of such date forappearance. (4) Where the notice of the date for appearance is given under sub-rule (3)- (a) it shall not be necessary for the Court in which the plaint ispresented after its return, to serve the defendant with a summons for appearance in the suit, unless that Court, for reasons tobe recorded, otherwise directs, and (b) the said notice shall be deemed to be a summons for the appearance of the defendant in the Court in which the plaint is presented on the date so fixed by the Court by which the plaint wasreturned. (5) Where the application made by the plaintiff under Sub-rule (2) isallowed by the Court, the plaintiff shall not be entitled to appealagainst the order returning the plaint. "the Counsel has contended that the learned Trial Judge had no jurisdiction todismiss the suit of the appellant and for passing an order for drawing a decree sheetin view of the fact that the suit was not adjudicated on merits and no decree couldbe prepared in this regard. He has referred me to the judgment of the Supremecourt in Madan Naik (dead by L. Rs.) and Others v. Mst. Hansubala Devi andothers AIR 1983 Supreme Court 676 where the Court held that abatement of appealfor non-substitution under the provisions of Order 22 Rule 9 (1), (2) and Order 43rule l (k) would not imply adjudication on merits. He has compared the facts ofthat case with the present case on the ground that when the Court was dismissingthesuit for want of pecuniary jurisdiction he could only act under the provisionsof Order 7 Rule 10 Civil Procedure Code and proceed to return the plaint for presentation in acourt of competent jurisdiction. Reference is made to paragraph 8 of the judgment,which reads as under: "section 2 Sub-sec (2) of the Civil Procedure Code defines decree to mean"the formal expression of an adjudication which, so far as regards the Courtexpressing it, conclusively determines the rights of the parties with regard toall or any of the matters in controversy in the suit and may be eitherpreliminary or final. It shall be deemed to include the rejection of a plaint andthe determination of any question within Section 144 but shall not include anyadjudication from which an appeal lies as an appeal from an order". Whenan appeal abates for want of substitution as envisaged by Sub-rule (1) of R. 9of 0. 22, it precludes a fresh suit being brought on the same cause of action. Itis a specific provision. If abatement implied adjudication on merits Sec. 11 ofc. P. C. would be attracted. Abatement of an appeal does not imply adjudication on merits and hence a specific provision had to be made in Order 22 Rule9 (1) that no fresh suit could be brought on the same cause of action. Thereforewhen the appeal abated there was no decree, disposing of the first appeal,only course open is to move the Court for setting aside abatement. Thereforewhen the appeal abated there was no decree, disposing of the first appeal,only course open is to move the Court for setting aside abatement. An orderunder Order 22 Rule 9 (2) Civil Procedure Code refusing to set aside abatement is specificallyappealable under Order 43, Rule 1 (k ). Such an adjudication if it can be sostyled would not be a decree as defined in Section 2 (2) Civil Procedure Code Section 100provides for second appeal to the High Court from every decree passed, inappeal by any Court subordinate to the High Court on the grounds therein setout. What is worthy of notice is that second appeal lies against a decreepassed in appeal. An order under Order 22 Rule 9 appealable as an orderwould not be a decree and,therefore, no $econd appeal would lie against thatorder. Such an appeal is liable to be rejected as incompetent. "therefore, there is force-in the contention that when the Court is not deciding thematter on merits and is only disposing of the issue to hold that it had no pecuniaryjurisdiction, the decree could not have been passed, as an order on the point ofjurisdiction does not, in any manner, conclusively determine the rights of theparties with regard to all or any of the matters in controversy in the suit. ( 7 ) THE learned Counsel for the respondent, on the other hand, has contendedthat the Trial Court dismissed the suit of the appellant and passed a decree thereof. The appellant has not preferred an appeal against the decree dated 31/03/1992,and, as such, the appeal filed by him is not maintainable. ( 8 ) I am not impressed with this argument raised by the Counsel as the matterwas decided on the preliminary issue relating to the territorial jurisdiction and thetrial Court only held that the Court had no territorial jurisdiction in the matter andno proceedings took place to decide the issue on merits. In this view of the matterthe Trial Court ought to have acted under the provisions of Order 7 Rule 10 C. P. C. and return the plaint and further to act under the provisions of Order 7 Rule IOAC. P. C. and proceed in terms thereof. ( 9 ) THE Trial Judge, therefore, had no jurisdiction to go beyond the powerswhich have been vested in him in law. P. C. and proceed in terms thereof. ( 9 ) THE Trial Judge, therefore, had no jurisdiction to go beyond the powerswhich have been vested in him in law. The only proper course for him, afterholding that the Court had no territorial jurisdiction, was to return the plaint andnot to dismiss the suit of the appellant. The decree sheet could not have beenprepared on the basis of the law as cited in this regard. The Trial Judge has grosslyerred in law in disposing of the suit of the plaintiff and passing a decree, when lawdid not empower him to do so. ( 10 ) THE appeal, as a consequence, is allowed. As the suit of the appellant/plaintiff could not have been dismissed the matter is remanded back to the learnedtrial Judge with the direction to proceed with in terms of Rules 10 and IOA of Ordervii of the Code of Civil Procedure. There will be no order as to costs. The parties are directed to appear before the Trial Court on 14/04/1994. The record be sent back forthwith.