Rehman Mir vs Gull Itoo And Ors
2021 Latest Caselaw 779 j&K/2

S No. 216
After Notice
                      IN THE HIGH COURT OF JAMMU AND KASHMIR
                                   AT SRINAGAR
                                                                           CSA No. 03/2012
                                                                            IA No. 01/2015

           Rehman Mir                                                           Petitioner(s)

           Through:-                                           Mr. P. S. Ahmad, Adv.
                                                         Vs.
           Gull Itoo and Ors.                                                 Respondent(s)

           Through:-                                           None.
           CORAM:-

Hon'ble Mr. Justice Sanjay Dhar, Judge.

(O R D E R) 19-07-2021 IA No. 01/2015:

This is an application filed by the applicant seeking leave of this Court for treating the instant Second Appeal as Civil Miscellaneous Appeal under Order 43 Rule 1(u) of CPC.

A perusal of the record shows that the respondents/plaintiffs had filed a suit for declaration, possession and permanent injunction against the appellant/defendant before the court of Learned Munsiff Kulgam. Vide judgment dated 05.09.2005, Munsiff, Kulgam dismissed the suit of plaintiffs by determining the preliminary issues framed in the suit. The said judgment and decree was challenged by the plaintiffs before the court of learned District Judge, Kulgam who vide his Judgment dated 22.02.2012, while setting aside the judgment and decree passed by the learned Munsiff, remanded the case back to learned Munsiff with a direction to decide the issues framed in the suit afresh.

As per the provision contained in Order 43 Rule 1(u) of CPC an appeal would lie against an order of remand passed under Rule 23 or Rule 23A of Order 41 of CPC. The impugned judgment passed by the learned District Judge, Kulgam is an order passed under Order 41 Rule 23-A of CPC, as such, a Miscellaneous appeal in terms of order 43 Rule 1(u) would lie against the said judgment.

For the foregoing reasons, the application is allowed and the Registry is directed to change the nomenclature of this appeal accordingly.

List the main appeal on 28th September, 2021.

(Sanjay Dhar) Judge SRINAGAR AASIF GUL19.07.2021 2021.07.22"Aasif"

22:17 I attest to the accuracy and integrity of this document