SIDDALINGAMMA Vs. GANGAMMA

JUDGEMENT

(1.) THE question that is involved in this appeal is whether, against the decision of the lower Appellate Court remanding the matter to the Trial Court with a direction to return the plaint to the plaintiff for being presented before the proper Court, gives rise to second appeal being preferred under Section 100 of the C. P. C. or not.

(2.) THE facts which have given rise to this question being raised, briefly stated, are to the effect that the appellant herein filed a suit for partition and separate possession of her l/3rd share in the suit schedule property and the Trial Court after considering the pleadings of the parties and the evidence, decreed the suit of the plaintiff. The defendants preferred an appeal before the lower Appellate Court questioning the said decision of the Trial Court. The learned Judge of the lower Appellate Court after hearing the parties, came to the conclusion that the suit property was worth more than Rs. 7 lakhs and therefore the Trial Court had no jurisdiction to try the suit and following the law laid down by the Apex court in the case reported in AIR 1956 SC 388, the lower Appellate Court allowed the appeal filed by the defendants and set aside the judgment and decree passed by the Trial Court and remitted the matter to the Trial court with a direction to return the plaint to the plaintiff for proper presentation. It is this finding of the lower Appellate Court that is called in question in this second appeal.

(3.) SRI S. Sunil Datt Yadav, learned Counsel for the respondents, at the outset submitted that the appeal itself is not maintainable under section 100 of the C. P. C. and the proper course to be adopted by the appellant is to file an appeal as if the appeal is from the order passed by the lower Appellate Court under Order 7, Rule 10 of the C. P. C. and hence this second appeal is not maintainable. In support of the above submission, he referred to the provisions of the C. P. C. , in particular Order 43, Rule l (a), Order 7, Rule 10 and to the definition of 'decree' as contained in section 2 (2) of the C. P. C. Referring to the aforesaid provisions of C. P. C. , it is submitted that the lower Appellate Court had not rendered a decision on the merits of the case, but had only directed the Trial Court to return the plaint for being presented to the proper Court by the plaintiff and as such, even though the lower Appellate Court set aside the judgment and decree of the Trial Court, the effect of the judgment of the Trial Court is that the plaint was returned. Under the above circumstances, second appeal could not have been filed by the appellant. In support of the above submission, he placed reliance on a ruling reported in AIR 1967 Patna 388.