Research › Search › Judgment

Madhya Pradesh High Court · body

2025 DIGILAW 669 (MP)

Nawab Raza v. Usman Khan

2025-12-05

DWARKADHISH BANSAL

body2025
ORDER 1. Heard on I.A. No. 22910/2025, which is an application/objection to the maintainability of miscellaneous appeal filed under Order 43 Rule 1(u) CPC. 2. Learned counsel for the respondent 1/plaintiff submits that a suit was filed on 20.5.2024 by the respondent 1/plaintiff for declaration of title, permanent injunction and for cancellation of amended partnership deed and upon service of summons of plaint, the appellants/defendants 1-2 instead of filing written statement, filed an application under Section 8 of the Arbitration and Conciliation Act, 1996 (in short ‘the Act of 1996’) r\w Order 7 rule 11 CPC with the contentions that there being an arbitration clause, the suit before civil Court is not maintainable, which was opposed by the plaintiff, but after hearing the parties, trial Court vide final order dtd.13.9.2024 rejected the plaint in the light of section 8 of the Act of 1996. Against which regular civil appeal was preferred by the plaintiff which by the impugned judgment and decree dtd.17.4.2025 was allowed by setting aside the order dtd.13.9.2024 and suit was remanded to the trial Court with the further direction to restore it to its original number and to decide on merits after framing necessary issues and after giving due opportunity of adducing evidence to the parties. With the support of decision in the case of Basheshar Nath Goela v. Bidhi Chand & Ors., AIR 1937 Lahore 380 , he submits that against the impugned judgment and decree of remand passed by the First Appellate Court, remanding the suit to the Trial Court for decision afresh, miscellaneous appeal under Order 43 Rule 1(u) CPC is not maintainable and deserves to be dismissed as not maintainable. 3. In turn, learned counsel for the appellants/defendants 1-2 submits that since by passing the impugned judgment and decree, the First Appellate Court has by setting aside the order dtd.13.9.2024 passed by trial Court, remanded the suit to the Trial Court for fresh decision on merits, therefore, the appellants have rightly filed the misc. appeal under Order 43 rule 1(u) CPC and there is no other remedy available in the CPC. He places reliance on the decision given by Hon’ble Supreme Court in the case of Jegannathan v. Raju Sigamani and Anr., (2012) 5 SCC 540 . With these submissions, he prays for dismissal of the application (I.A. No.22910/2025). 4. Heard learned counsel for the parties and perused the record. 5. He places reliance on the decision given by Hon’ble Supreme Court in the case of Jegannathan v. Raju Sigamani and Anr., (2012) 5 SCC 540 . With these submissions, he prays for dismissal of the application (I.A. No.22910/2025). 4. Heard learned counsel for the parties and perused the record. 5. Apparently, the Trial Court rejected the plaint by allowing the application filed under section 8 of the Arbitration and Conciliation Act, 1996 r\w Order 7 rule 11 CPC and by way of the impugned judgment and decree, the First Appellate Court has set aside the order dtd.13.09.2024 passed by the Trial Court and remanded the suit to the trial Court for fresh decision on merits after recording evidence of the parties. 6. Said decision in the case of Basheshar Nath Goela (supra), relied upon by learned counsel for the respondent 1, came into consideration before a coordinate Bench of Nagpur High Court in the case of Madhaorao Ganesh Despande v. Keshao Gajanan Huddar and another, AIR 1941 Nagpur 304 , but was not followed and it was held that : “2. A preliminary point is raised on behalf of the plaintiff against the tenability of this appeal on the ground that the remand order was not one based under O. 41, R. 23, Civil P.C., liable to appeal under 0.43, R. 1 (u), Civil P.C. Reliance is placed on :Basheshar Nath v. Bidhi Chand, 1937 AIR(Lah) 380 Although there is a discussion in that case as to whether the appellate Court's order remanding the suit after setting aside an order of rejection of the plaint was one made under 0.41, R. 23, the decision of the case actually rested on the view that rejection of the plaint for noncompliance of S. 80, Civil P.C., was not to be regarded as one falling under O.7, R. 11. I fail to see why rejection of a plaint cannot be regarded as a preliminary point in an appeal from the rejection of a plaint. In Raman Nayar v. Krishnan Nambudripad, 1922 AIR(Mad) 505. the Madras High Court defined the preliminary point as any point whether of fact or law the decision of which avoids the necessity for the full hearing of the suit. In Govinda v. Baliram, 1930 AIR(Nag) 295. In Raman Nayar v. Krishnan Nambudripad, 1922 AIR(Mad) 505. the Madras High Court defined the preliminary point as any point whether of fact or law the decision of which avoids the necessity for the full hearing of the suit. In Govinda v. Baliram, 1930 AIR(Nag) 295. I held that a preliminary point is one which when determined in favour of the plaintiff permits the progress of the suit but when determined against him concludes the suit. In that case I had envisaged the possibility of the lower appellate Court's remanding the suit on setting aside the rejection of a plaint was an order falling under O.41, R. 23, Civil P.C. I see no strong reason with due respect to the view taken in Basheshar Nath v. Bidhi Chand, 1937 AIR(Lah) 380 to depart from the opinion expressed in the aforesaid case. 3. The preliminary points may arise before or after admission of the plaint. In either case if the decision on the preliminary point is against the plaintiff that would stop the further progress of the suit so as to compel the Court to dispose of the suit finally without deciding the merits of the controversy. The words ''where the Court from whose decision'' and the ''decree is reversed in appeal'' occurring in R. 23 of O. 41, are significant. The words used are ''disposed of the suit'' and not ''decided the suit''. Those words literally apply to a case of rejection of a plaint. The order rejecting a plaint has the force of a decree under S. 2 (2), Civil P.C., and the rejection of the plaint brings about the disposal of the suit. When an appeal is preferred against an order rejecting a plaint which has the force of a decree and the appellate Court sets aside that order it has to remand the case for the trial of the issues arising in the case. The order of remand could not be made under any other provision of law except under O. 41, R. 23, Civil P.C. Consequently the lower appellate Court's order remanding the suit must be treated as one under O. 41, R. 23, Civil P.C, so as to give a right of appeal to the aggrieved party under O.43, R. 1 (u). The order of remand could not be made under any other provision of law except under O. 41, R. 23, Civil P.C. Consequently the lower appellate Court's order remanding the suit must be treated as one under O. 41, R. 23, Civil P.C, so as to give a right of appeal to the aggrieved party under O.43, R. 1 (u). I therefore do not see my way to accede to the contention raised on behalf of the plaintiff that an appeal does not lie.” 7. Again, identical controversy arose before a coordinate Bench of this Court in the case of Shiv Kumar v. Ramkatori and others, 1977 MPLJ 783 = 1977 JLJ 33 , which followed the decision of Nagpur High Court in the case of Madhaorao Ganesh Despande (supra), and held that in such circumstances the judgment passed by the First Appellate Court remanding the suit to the Trial Court, is appealable under Order 43 Rule 1(u) CPC. Apparently, while rejecting the plaint under Order VII Rule 11 CPC, the Trial Court in the light of arbitration clause, did not consider merits of the averments made in the plaint. 8. Relevant paragraph 1 of the decision in the case of Shiv Kumar (supra), is as under :-- “The order of the trial Court rejecting the plaint amounted to a decree within the meaning of the definition of that term in S 2 of the Code of Civil Procedure. It was, therefore, appealable. The appellate Court set aside the order of the trial Court and remanded the suit for trial. The order of the appellate Court falls within the purview of Order 41, Rule 23, CPC in as much as the decision of the trial Court was on a preliminary point. Thus, the order of the appellate Court was appealable under Order 43, Rule 1, C.P.C. See Madhav v. Keshoo(1). This revision is, therefore, not competent. It will, however, be treated as a Miscellaneous appeal, as prayed by Shri Sapre in his application of today.” 9. Thus, the order of the appellate Court was appealable under Order 43, Rule 1, C.P.C. See Madhav v. Keshoo(1). This revision is, therefore, not competent. It will, however, be treated as a Miscellaneous appeal, as prayed by Shri Sapre in his application of today.” 9. An identical view was taken by the High Court of Rajasthan also in the case of Mewar Industrial and Commercial Syndicate, Udaipur v. Firm Rai Bahadur Seth Moolchand Suganchand, Udaipur, 1955 SCC OnLine Raj 116, wherein the Court held that an appeal against an order setting aside the trial Court’s rejection of plaint is maintainable, and did not follow the view taken in Basheshar Nath Goela (supra). 10. It is apposite to mention here that although a Division Bench of High Court of Calcutta in the case of Sri Shyam Sundar Paul v. Sri Goutam Poddar and others, AIR 2022 Cal 151 , in the similar situation, has taken a different view following the decision of Lahore High Court in the case of Basheshar Nath Goela (supra), but in presence of the decision of this Court in the case of Shiv Kumar (supra), which is binding on this Court, there cannot be any dispute about maintainability of instant miscellaneous appeal. 11. So far as the decision relied upon by learned counsel for the appellants in the case of Jegannathan (supra), is concerned, it does not deal with the controversy relating to Order 41 rule 23 CPC, therefore, is not relevant to the present case. 12. Resultantly by dismissing the application (I.A. No. 22910/2025), instant miscellaneous appeal is held to be maintainable. 13. Accordingly, I.A. No.22910/2025 is disposed of/closed. 14. Registry is directed to list this appeal before the appropriate Bench for further consideration in the week commencing from 15.12.2025.