BABU Vs. KISHUN SINGH

JUDGEMENT

(1.) TWO suits were brought by plaintiff-appellants for the cancellation of two leases of an agricultural holding and for possession of that holding on the allegation that the execution of those leases was procured by defendant- respondent by the exercise of fraud on their guardian, who was a pardanashin lady, and who had executed those leases. The allegation that fraud had been exercised was denied by the defendants and it was further urged in defence that the suit was barred by Section 202 of the Agra Tenancy Act (2 of 1901). The pleas urged in defence were overruled by the trial Court and the suit was decreed. On appeal by the defendant the lower appellate Court, being of opinion that the trial Court should have, before proceeding to decide the suit, directed the defendant in accordance with the provisions of Section 202(1) of the Agra Tenancy Act to institute a suit in the civil Court for the determination of the question of the tenancy raised by him, allowed the appeals and remanded both the suits to the trial Court with instruction that in each case an order in writing should be passed under Section 202 of the Tenancy Act.

(2.) THE orders of the lower appellate Court were obviously orders of remand. Against those orders in this Court two second appeals were filed am informed by Mr. Panna Lal that one of those appeals has already been dismissed by this Court. A second appeal does not lie against the order of remand passed by the lower appellate Court and I was asked by Mr. S.B. Johri, counsel for the appellants, to convert this second appeal into a first appeal from order. Ordinarily, I would have been inclined to grant this request of the learned Counsel provided I was satisfied that the order of the lower appellate Court was an appeal able order. But it appears to me that order is not an appealable one. At the time that the present appeal was filed the right of appeal given by Order 43, Rule 1(u), Civil P.C. was restricted to cases in which an order under Rule 23 of Order 41, Civil P.C. remanding a case was passed. I am not unaware of the fact that Clause (u) of Rule 1 of Order 43 of the Civil P.C. has since been amended, but this amendment obviously cannot have a retrospective effect. THE order of remand passed by the lower appellate Court in the present case was not a remand order under Order 41, Rule 23 of the Civil P.C. inasmuch as the trial Court had not decided the suit on a preliminary point. THE order of the lower appellate Court remanding the case must be taken to have been passed in the exercise of the inherent jurisdiction of Courts which is recognised by Section 151 of the Civil P.C. As such the order of the lower appellate Court was not appealable. Accordingly I cannot convert this second appeal into a first appeal from order. I dismiss the appeal with costs.