ANAND CHANDEL Vs. YUVRAJ

JUDGEMENT

(1.) The present second appeal has been preferred against the judgment dtd. 6/8/2022 passed by the District Judge, Jodhpur Metro in Civil Appeal No. 15/2021 vide which the judgment and decree dtd. 14/9/2021 passed by the Civil Judge, Jodhpur Metro in Civil Original No. 15/2021 (222/2021) has been reversed. Vide judgment dtd. 14/9/2021, the learned trial Court proceeded on to allow the application under Order 7, Rule 11 of the Code of Civil Procedure as preferred by the defendant-appellant and consequently, rejected the plaint as preferred by the plaintiffs-respondents.

(2.) At the outset, it may be noticed that second appeal against the order passed by the first appellate Court setting aside the dismissal of the suit on preliminary point and remanding back the matter is not maintainable. In fact, an appeal under Order XLIII Rule 1 (u) CPC would be maintainable.

(3.) However, as the period of limitation and court fees etc., are the same in second appeal and misc. appeal, instead of requiring the appellant to file misc. appeal/convert the present second appeal into misc. appeal, in view of the fact that this Court, as of date, has the roster to hear both second appeal and misc. appeal, counsel for the appellant was heard on merits.