SARUP Vs. KUNDAR

JUDGEMENT

(1.) THIS appeal, which is described as a second appeal, is really a first appeal from an order of remand. It appears that the plaintiff-appellant sued for the recovery of Rs. 160 as damages, on the allegation that he had been stopped from sinking a well by the defendant-rspondent which resulted in the loss of Rs 100 to the plaintiff-appellant. Both arties agreed in the Court of first instance abide by the statement of one Nasir-ud-din, ziladar of the Court of Wards of the Estate of Tirwa. The learned Munsif n the evidence of Nasir-ud-din awarded Rs. 25 as damages to the plaintiff. On appeal the learned Judge remanded the as under Order XLI, Rule 23. The plaintiff as come up in appeal and challenges the rder of remand. A preliminary objection taken on behalf of the respondent to he effect that no appeal lies to this Court he argument is that the suit of the plaintiff is a suit of Small Cause Court nature, in which only one appeal is allowed according to Section 102 of the Code of Divil Procedure and under Order XLIII, Clause (u), an appeal from an order under Rule 23 of Order XLI is allowed only in case where an appeal would lie from he decree of the Appellate Court. In the present case no second appeal lies and, therefore, the order of remand is not appealable. The contention for the respondent is, in my opinion, correct and nust be sustained. The learned Vakil for he plaintiff-appellant, however, asked this court to treat his appeal as an application n revision. He contends that the lower Appellate Court had no jurisdiction to remand he case under Order XLI, Rule 23, inasmuch is the decree of the first Court was not cased on a decision on a preliminary joint. I do not think the plaintiff-appellant appeal heard as a revision, but even if I were to concede to him the indulgence he asked for I do not think his contention is correct. The learned Munsif did not decide the case on the merits but decided on the evidence of Nasir-ud-din at the suggestion of the parties. The evidence of Nasir ud-din, as pointed out by the learned Judge, is inconclusive. The order of remand, therefore, was not, in my opinion, without jurisdiction. The appeal fails and is dismissed with costs.