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2019 DIGILAW 2550 (ALL)

Ashok Kumar Sharma v. Beena Sharma

2019-11-14

PRADEEP KUMAR SINGH BAGHEL

body2019
JUDGMENT : 1. This recall application has been moved by the defendant-respondent no. 1 for recall of the order dated 07th March, 2017, whereby this Court has admitted the second appeal, issued notices to the respondents and granted interim order. The recall application has been filed on the ground that the second appeal is not maintainable against a remand order in view of the provisions of Order XLIII Rule 1 (u) of the Code of Civil Procedure, 1908, [CPC]. 2. The plaintiff-appellant had instituted a civil suit in the Court of the Civil Judge, Senior Division, Hapur, which was registered as O.S. No. 66 of 2008, Ashok Kumar Sharma v. Smt. Rameshwari and others, for permanent injunction restraining the defendants from interfering in his possession over the suit property and to declare the sale-deed dated 10th December, 2007 as void and non est. The defendants contested the matter and the plaintiff's suit was decreed vide judgment and decree dated 09th March, 2016. Aggrieved by the said judgment and decree of the trial Court, the defendant-respondent no. 1 preferred a civil appeal, being Civil Appeal No. 29 of 2016, Smt. Beena Sharma v. Ashok Sharma and others, which was allowed by the lower appellate Court vide its judgment and decree dated 02nd February, 2017 and the judgment and decree dated 09th March, 2016 of the trial Court was set aside and the matter was remanded back to the trial Court to decide the matter afresh in the light of the observations made by the lower appellate Court. 3. Against the said remand order and decree dated 02nd February, 2017 and 13th February, 2017 respectively passed by the District Judge, Hapur in Civil Appeal No. 29 of 2016, the present second appeal has been filed by the plaintiff-appellant. 4. In the second appeal, vide order dated 07th March, 2017 the appeal has been admitted, notices have been issued to the defendants-respondents and the parties have been directed to maintain status quo. Against this order dated 07th March, 2017 the present recall application has been filed. 5. I have heard learned counsel for the applicant-respondent no. 1 and learned counsel for the appellant. 6. Learned counsel for the applicant-respondent no. 1 has urged that in view of the provisions of Order XLIII Rule 1(u) CPC the second appeal is not maintainable against the remand order. 5. I have heard learned counsel for the applicant-respondent no. 1 and learned counsel for the appellant. 6. Learned counsel for the applicant-respondent no. 1 has urged that in view of the provisions of Order XLIII Rule 1(u) CPC the second appeal is not maintainable against the remand order. He has placed reliance on a judgment of the Supreme Court in Jegannathan v. Raju Sigamani and another, (2012) 5 SCC 540 . 7. Learned counsel for the appellant-plaintiff has placed reliance on a judgment of the Supreme Court in the case of Narayanan v. Kumaran and others, (2004) 4 SCC 26 in support of his submission that the second appeal is maintainable. 8. I have considered the rival submissions of learned counsel for the parties and perused the material on the record. 9. Concededly, the second appeal has been filed against a remand order. The operative portion of the judgment and order of the lower appellate Court dated 02nd February, 2017 reads as under: ^^rnuqlkj ;g vihy Lohdkj dh tkrh gSA v/khuLFk U;k;ky; dk fu.kZ; o fMØh fnukafdr 09-03-2016 fujLr dh tkrh gSA v/khuLFk U;k;ky; dks i=koyh bl funsZ'k ds lkFk okfil Hksth tkrh gS fd og Åij fd;s x;s foospuksa o lanfHkZr fof/k o lqLFkkfir fof/k ds ekxZn'kZd fl)karks ds lanHkZ esa i{kks dks lk{; o lquokbZ dk volj nsdj iqu% ekeys esa fu.kZ; o fu"d"kZ ;Fkk 'kh?kz 4 ekg esa nsxhA^^ 10. I have perused the initial report of the Stamp Reporter, which does not raise any objection regarding maintainability of the appeal. A fresh report was called for from the Stamp Reporter, who made the following report on 11th March, 2019: “In compliance with Hon'ble Court's order dt. 06.3.19, S.R. has to submit that on going through the appellate order, it transpires that the instant appeal has been filed against the remand order. Hence, the second appeal is not maintainable. Inconvenience caused to the Hon'ble Court is deeply regretted.” 11. Order XLIII Rule 1(u) CPC reads as under: “1. Appeals from order.—An appeal shall lie from the following orders under the provisions of Section 104, namely:— *** *** *** (u) an order under Rule 23 [or Rule 23-A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;” 12. A perusal of the said provision clearly indicates that an appeal does not lie against the remand order. 13. A perusal of the said provision clearly indicates that an appeal does not lie against the remand order. 13. The same issue fell for consideration before the Supreme Court in the case of Jegannathan (supra), wherein the Supreme Court considering the provisions of Order XLI Rule 23, Order XLI Rule 23-A and Order XLI Rule 25 CPC has held as under: “11. The High Court relied upon a decision of this Court in Narayanan v. Kumaran, (2004) 4 SCC 26 in holding that civil miscellaneous appeal from the order of remand was not maintainable. The High Court was clearly in error. What has been held by this Court in Narayanan is that an appeal under Order 43 Rule 1 Clause (u) should be heard only on the ground enumerated in Section 100 of the Code. In other words, the constraints of Section 100 continue to be attached to an appeal under Order 43 Rule 1(u). The appeal under Order 43 Rule 1(u) can only be heard on the grounds a second appeal is heard under Section 100. 12. There is a difference between maintainability of an appeal and the scope of hearing of an appeal. The High Court failed to keep in view this distinction and wrongly applied the case of Narayanan in holding that miscellaneous appeal preferred by the appellant was not maintainable.” 14. Learned counsel for the appellant has relied on the judgment of Narayanan (supra). Pertinently, the judgment of Narayanan (supra) has been distinguished by the Supreme Court in Jegannathan (supra) in paragraph-11 & 12 of the judgment, which has been extracted above. 15. In view of the said principle, it is evident that against a remand order the present second appeal is not maintainable. Accordingly, the recall application is allowed. The order dated 07th March, 2017 is recalled. 16. Resultantly, the second appeal is dismissed as not maintainable. 17. No order as to costs.