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2012 DIGILAW 203 (PAT)

Ram Surti Devi v. Rabindra Sharma

2012-02-02

SHAILESH KUMAR SINHA

body2012
Judgment (Per: Hon'ble Mr. Justice Shailesh Kr. Sinha) 1. The above appeal is directed against the order dated 26th of March, 2004 in Miscellaneous Appeal Nos. 3/1994/7/1993 passed by the 1st Additional District Judge, Gaya, whereby and whereunder the order dated 6.3.1993 passed by the Munsif, 3rd, Gaya in Title Suit No. 17/90, which was passed on a petition dated 27.11.1992 filed by the respondents herein for substituting their names in place of the sole plaintiff was rejected, has been set aside and the matter was remanded back to the trial court for reconsidering the matter afresh. 2. The appellants have assailed the impugned order and supported the order of the trial court rejecting the petition filed by the respondents for substitution of their names in place of the sole plaintiff and as such, assailed the order under the appeal, whereby the matter was remanded back to the trial court, besides the ground that the appeal filed before the lower appellate court itself was not maintainable. 3. The present appeal was admitted by order dated 11.7.2011. As the question of maintainability of the present appeal was raised by the respondents, the Court kept the question of maintainability open to be raised by the respondents at the time of final hearing of this appeal. The appeal has been placed for hearing and the respondents have raised a preliminary objection with respect to the maintainability of the appeal. 4. Learned counsel appearing on behalf of the respondents on the question of maintainability of the appeal submits that the order under the appeal was passed on the miscellaneous appeal filed by the respondents under Order XLIII Rule 1 (1) of the Code of Civil Procedure (hereinafter referred to as "the Code"). The lower appellate court after hearing the appeal remanded back the matter to the trial court for reconsideration on the petition dated 27.11.1992 filed for substituting the respondents in place of the sole plaintiff of the aforesaid Title Suit No. 17/90. It is further submitted that the order under the appeal is not subject to further appeal in view of the legal bar as provided under sub-section (2) of Section 104 of the Code, which provides that no appeal shall lie from any order passed in appeal under this Section i.e., under Section 104. It is further submitted that the order under the appeal is not subject to further appeal in view of the legal bar as provided under sub-section (2) of Section 104 of the Code, which provides that no appeal shall lie from any order passed in appeal under this Section i.e., under Section 104. In support of his contention, learned counsel has relied upon a decision in the case of Lala Tara Chand vs. Firm Manku Lal Ram Chand, reported in A.I.A. 1939 Lahore 65, which was also considered alongwith other similar judgments by this Court in the case of Rajiv Mouar vs. Apostolic Carmel and Others, vide Miscellaneous Appeal No. 705 of 2009, disposed of on 4th of February, 2011. 5. On the other hand, learned counsel appearing on behalf of the appellants submits that notwithstanding the question of maintainability raised by the respondents before the, lower appellate court, the matter was remanded. It is submitted that no such remand could had been made since the petition filed by the respondents before the trial court vide their petition dated 27.11.1992 did not mention anything with respect to the grant of leave. However, the order of remand as per the impugned order is open to appeal under Order XLIII Rule 1 (u) of the Code and as such the present appeal before this Court is maintainable. That apart, it is submitted that since the appeal has remained pending for a sufficient time, the appeal be decided on merits and not on the technical ground of its maintainability. Learned counsel for the appellants submits that his submissions are based on well settled law. 6. Upon considering the rival submissions of the parties, it would appear that on the one hand, the respondents submits that in view of the express legal bar prescribed in. sub-section (2) of Section 104 of the Code, no further appeal is permissible in law against the impugned order, which was filed under Section 104 read with Order XLIII Rule 1 (1) of the Code in the miscellaneous appeal filed in the court below. 7. On the other hand, learned counsel for the appellants submits that since by the impugned order the lower appellate court has remanded the matter on the appeal filed by the respondents, the present appeal is maintainable in terms of the provisions of Order XLIII Rule 1 (u) of the Code. 8. 7. On the other hand, learned counsel for the appellants submits that since by the impugned order the lower appellate court has remanded the matter on the appeal filed by the respondents, the present appeal is maintainable in terms of the provisions of Order XLIII Rule 1 (u) of the Code. 8. In order to appreciate the rival submissions, it would be fruitful to quote the relevant extracts of the provisions of Section 104 as also the provisions of Order XLIII Rule.1 (u) of the Code, which run as follows: "104. Orders from which appeal lies.-(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:- a[x x x x x x x x x] b[(ff) an order under Section 35A;] c[(ffa) an order under section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be] (g) an order under Section 95; (h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree; (i) any order made under rules from which an appeal is expressly allowed by rules: Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made. (2) No appeal shall lie from any order passed in appeal under this section." xxxx xxxx xxxx xxxx Order XLIII R.1. Appeals from orders.-An appeal shall lie from the following orders under the provisions of Section 104, namely:- …………………… …………………….. (u) an order under Rule 23f (or Rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;" 9. From the reading of the aforesaid provision of law it would appear that in terms of the provisions of Section 104(1) of the Code only such appeal is provided under the order as mentioned in the aforesaid provisions read with different types of order as mentioned in Order XLIII Rule 1 of the Code. From the reading of the aforesaid provision of law it would appear that in terms of the provisions of Section 104(1) of the Code only such appeal is provided under the order as mentioned in the aforesaid provisions read with different types of order as mentioned in Order XLIII Rule 1 of the Code. It would also clearly appear that the order passed on such appeals, there would be no further appeal in terms of the provisions of sub-section (2) of Section 104 of the Code. Order XLIII Rule 1 (u) of the Code permits an appeal only from an order of remand under Rule 23, Rule 23A of Order XLI of the Code only where an appeal would lie from the decree of the appellate court. The impugned order is not a decree and as such, no appeal would lie. 10. Considering and discussing the above provisions of law, I am of the opinion that the objection raised by the respondents with respect to the maintainability of the appeal has substance and as such, it must prevail. 11. Accordingly, I find that the appeal is not maintainable. The same is, thus, dismissed. However, in the facts and circumstances of the case, there would be no order as to costs.