[Cites 11, Cited by 0]
Madhya Pradesh High Court
Smt. Gyanwati vs Arjun Patel on 6 February, 2026
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
SA-296 of 2026
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 6th OF FEBRUARY, 2026
SECOND APPEAL No. 296 of 2026
SMT. GYANWATI AND OTHERS
Versus
ARJUN PATEL AND OTHERS
Appearance:
Shri Durgesh Kumar Singrore - Advocate for the appellants.
Shri Shakti Prakash Pandey - Advocate for the respondent 1.
Shri Rezi Mathai - Panel Lawyer for the State/respondent 3.
ORDER
This second appeal has been preferred by the appellants/plaintiffs challenging
the judgment and decree dated 28.03.2024 passed by 5th District Judge, Mandla in
RCA no.8/2023 reversing the judgment and decree dated 23.12.2022 passed by 3rd
Civil Judge Senior Division, Mandla in regular civil suit no.800045/2016 whereby
Trial Court decreed the appellants/plaintiffs' suit filed for declaration of title, for
declaring the sale deed null and void and for issuance of permanent injunction, but
upon filing civil appeal by the defendant 1-Arjun Patel, First Appellate Court set
aside the judgment and decree passed by Trial Court and finding the Trial Court to
have no pecuniary jurisdiction, returned the plaint under Order VII Rule 10 CPC for
filing the same before the competent Family Court.
2. Against the impugned judgment and decree, originally the appellants
preferred misc. appeal under Order 43 Rule 1(u) of CPC treating the impugned
judgment to be a judgment of remand, which was registered as Misc. Appeal
No.4829/2024, but later on upon filing IA no.24282/2025, the Misc. appeal was
permitted to be converted into second appeal and consequently, instant second
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appeal is listed before this Court for admission.
3. Since by way of instant second appeal, challenge is made to the judgment
and decree directing return of the plaint for filing before the competent Family
Court, therefore, upon asking question from the counsel for the appellants regarding
maintainability of instant second appeal, he submits that in presence of an order
passed by a co-ordinate Bench of this Court at Jabalpur in the case of Ashok Kumar
Tamrakar vs. Neelkant Agnihotri and others (decided on 16.09.2025 in MA
no.3033/2011), he was constrained to file an application for conversion of misc.
appeal into second appeal and after conversion, he is pressing the second appeal and
he prays for listing the second appeal for hearing after calling the record of Courts
below. He also submits that he just wants to challenge the impugned judgment and
decree and he has no objection in filing either the misc. appeal or second appeal.
4. Heard learned counsel for the appellants and perused the record.
5. Before passing any order on the question of maintainability of the second
appeal, this Court is required to consider the ratio laid down by the learned Court in
the case of Ashok Kumar Tamrakar (supra). Relevant paragraphs of the same are
as under :-
"5. The first and foremost question which arises before this Court is as to whether
the order passed by the appellate Court directing the trial Court to return the plaint
is a remand order ? If not, then whether the same is appealable under Order 43 Rule
1 of CPC ?
6. In order to determine the said issue, it is apt to read the relevant provision
regarding remand. Under the CPC, Order 41 deals with the appeals from original
decrees and Rules 23 and 23-A thereunder speak about the remand of case by the
appellate Court, same are quoted hereinunder :-
"23. Remand of case by Appellate Court. --Where the Court from whose decree
an appeal is preferred has disposed of the suit upon a preliminary point and the
decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order
remand the case, and may further direct what issue or issues shall be tried in the
case so remanded, and shall send a copy of its judgment and order to the Court
from whose decree the appeal is preferred, which directions to re-admit the suit
under its original number in the register of civil suits, and proceed to determine the
suit; and the evidence (if any) recorded during the original trial shall, subject to all
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just exceptions, be evidence during the trial after remand.
23A. Remand in other cases. --Where the Court from whose decree an appeal is
preferred has disposed of the case otherwise than on a preliminary point, and the
decree is reversed in appeal and a re-trial is considered necessary, the Appellate
Court shall have the same powers as it has under rule 23."
7. On perusal of above quoted Order and Rules, it transpires that a remand means
the appellate Court sends the case back to the same trial Court for retrial or
reconsideration after setting-aside the decree for the purpose of fresh decision on
merits. When an appellate Court sets-aside a decree of the trial Court directing the
trial Court to return the plaint to be presented before a competent Court, is not an
order of remand under Order 41 Rule 23 or 23-A of CPC.
8. Further, the provisions relating to return of plaint is given under Order 7 Rules 10
and 10-A of CPC and on careful reading thereof, it reveals that if the Court finds that
it lacks jurisdiction (territorial, pecuniary or subject-matter) and directs the plaint to
be returned for presentation before the proper Court enabling the plaintiff to file his
suit before the competent Court, and does not pass any order directing retrial by the
same Court, is not a remand order, even though passed in appeal.
9. Under Order 43 Rule 1(a) of CPC, an appeal lies from an order under Order 7
Rule 10 returning a plaint but that clause applies only when the order is passed by a
Court at first instance i.e.trial Court. The CPC does not expressly provide for an
appeal against an appellate order directing the return of the plaint. However, such an
order is considered as a 'decree' within the meaning of Section 2(2) of CPC because
decree means 'the formal expression of an adjudication which, so far as regards the
Court expressing it, conclusively determines the rights of the parties with regard to
all or any of the matters in controversy in the suit and may be either preliminary or
final. It shall be deemed to include the rejection of a plaint and the determination of
any question within Section 144, but shall not include -
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
10. In view of the above, this Court is of the opinion that an order passed by the
appellate Court directing the trial Court to return the plaint to the plaintiff for
presentation before the proper Court is not a remand order, rather is a decree, as the
same determines the issue of jurisdiction and the remedy is to file Second Appeal
before the High Court under Section 100 of CPC not a Miscellaneous Appeal under
Order 43 Rule 1 of CPC.
11. Accordingly, the instant miscellaneous appeal is hereby dismissed being not
maintainable.
12. However, the appellant shall be at liberty to file appropriate proceedings in
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accordance with law."
6. While holding the misc. appeal as not maintainable, the learned Court has
recorded viz. i). The order returning a plaint to be presented before a competent
Court is not an order of remand; ii). Order 43 Rule 1(a) of CPC applies only when
the order is passed by a Court at first instance i.e. Trial Court; iii). The order
returning a plaint is considered as a decree within the meaning of Section 2(2) of
CPC. With these findings, the learned Court has observed that against such
order/judgment, Second Appeal lies before the High Court under Section 100 of
CPC.
7. In the case of Straw Produces Limited vs. Municipal Board, AIR 1959 MP
253, an identical question arose before a coordinate Bench of this court, where the
first appellate Court i.e. the Second Additional District Judge, Bhopal returned the
plaint for presentation before competent Court and in this factual scenario, the Court
had held as under:-
"6. The trial Judge, after a full trial of the suit, decreed the plaintiff's claim partly
restraining the defendant from enforcing the demand for the amount of Rs. 67,775-
5-0 towards the alleged water rate for the period from 24-4-1950 to 31-3-1953
through coercive process. The plaintiff's claim for an injunction regarding the period
subsequent to-31-3-1953 was dismissed. Both the parties filed appeals before the
Additional District Judge; appeal No. 46 of 1957 being filed by the Municipal Board
and appeal No. 47 of 1957 being filed by the plaintiff Company. Both the appeals
were disposed of by a single order, which is the subject matter of the present appeal.
This appeal, therefore, shall dispose of the questions raised by both the parties before
the first appellate Court in their respective-appeals, provided the appellant pays the
requisite court fees before the delivery of the order.
7. This appeal has been filed under Order 43, Rule 1(a) of the Civil Procedure Code
on the assumption that the order of the Additional District Judge was under Order 7
Rule 10 of the Civil Procedure Code. It was contended by the learned counsel for the
respondent that the order was not only one under Order 7 Rule 10, Civil Procedure
Code but also under Order 7 Rule 11 (b) of the Civil Procedure Code. Although the
question of court-fees may be intimately connected with the question raised in the
present case, the order passed by the learned Additional District Judge could in no
way be construed to be one under Order 7 Rule 11 (b) of the Civil Procedure Code.
It was an order exclusively under Order 7 Rule 10 of the Civil Procedure Code,
directing the plaint to be returned to the plaintiff for presentation to the proper Court,
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on the ground, that the trial Court bad no pecuniary jurisdiction to try the suit. I,
therefore, am of opinion that the present case is governed by Order 7 Rule 10
of the Civil Procedure Code read with Order 43 Rule 1 (a) of the Civil
Procedure Code."
8. In the case of Smt. Siddalingamma vs. Smt. Gangamma & others, ILR
2008 KAR 3907, almost similar controversy arose, in which a co-ordinate Bench of
Karnataka High Court had held as under:-
"6. Having regard to the fact that the lower appellate court had ultimately directed that
the plaint be returned to the plaintiff for being presented to the proper court, it has to
be held that the lower appellate court did not go into the merits of the case, but only
found that the trial court had no jurisdiction to pass the judgment and decree in
question. Therefore, the provisions of Order 7 Rule 10 of the C.P.C. become
applicable. The said provision reads as under:
"10. Return of plaint.-- (1) Subject to the provisions of rule 10
A, the plaint shall at any stage of the suit be returned to be
presented to the court in which the suit should have been
instituted.
Explanation.-- For the removal of doubts, it is hereby declared
that a court of appeal or revision may direct, after setting aside
the decree passed in a suit, the return of the plaint under this sub-
rule."
7. A careful reading of the explanation to Rule 10 sub-clause (1) also makes it clear
that the court of appeal can order return of plaint only after setting aside the decree
passed in a suit. Therefore, in the instant case, though the decree of the trial court
was set aside by the appellate court, it was only to enable the plaint being presented
in a proper court.
8. Whether the order of the lower appellate court for return of plaint can be
considered as a decree is the next aspect to be considered and this requires us to
keep in view the definition of 'decree'. Section 2(2) of the C.P.C. defines 'decree'
thus:
"(2) "decree" means the formal expression of an adjudication
which, so far as regards the court expressing it, conclusively
determines the rights of the parties with regard to all or any of
the matters in controversy in the suit and may be either
preliminary or final. It shall be deemed to include the rejection
of a plaint and the determination of any question within section
144, but shall not include--
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(a) any adjudication from which an appeal lies as an appeal
from an order, or
(b) any order of dismissal for default."
It is, therefore, to be observed that a decree shall also be deemed to include the
rejection of a plaint, but does not include the return of the plaint and it does not
include any adjudication from which an appeal lies as an appeal from an order.
Whether the judgment of the trial court directing return of the plaint can be
considered as an appealable order or not is the next question to be answered. Order
43 Rule 1 gives the answer. The said Order 43 Rule 1 sub-clause (a) is as under:
"1. Appeal from orders. -- An appeal shall lie from the
following orders under the provisions of section 104,
namely:--
(a) an order under rule 10 of Order VII returning a plaint to be
presented to the proper court except where the procedure
specified in rule 10A of Order VII has been followed;"
Hence, an order under Rule 10 of Order VII returning a plaint is, therefore, an
order against which an appeal lies.
9. Thus, on a careful reading of the aforesaid provisions of the C.P.C. and applying
them to the case on hand, it can be said that the judgment of the lower appellate
court directing the plaint to be returned to the proper court will have to be construed
as an order passed under Order 43 Rule 1(a) of the C.P.C. and, therefore, an appeal
against such an order lies not under Section 100 of the C.P.C. In other words, a
second appeal under Section 100 of the C.P.C. is permissible only from every
decree passed in appeal by any court subordinate to the High Court, if the High
Court is satisfied that the case involves a substantial question of law. Therefore,
what gives jurisdiction under Section 100 of the C.P.C., is that the appeal
necessarily will have to be against a "decree" passed in appeal by the subordinate
courts. In view of the judgment of the lower appellate court by its very nature of
the order passed does not bring it within the definition of a "decree" as defined in
Section 2(2) of the C.P.C., I am of the considered opinion that second appeal will
not lie against the impugned judgment of the lower appellate court.
10. For the foregoing reasons, second appeal is held to be not maintainable, but the
appellant is at liberty to file an appropriate appeal. At this stage, the learned counsel
for the appellant submitted that he be given the liberty to convert this R.S.A. into
M.F.A. Liberty sought for is granted.
The appeal is disposed of in the above terms."
9. In the following decisions also almost similar controversy arose and was
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considered in the same line :
(i) In the case of Kapil P. Mohmed v. S. Anthony, 1983 SCC OnLine Bom
259, a coordinate Bench of Bombay High Court held as under:
"14.........Even though the contentions were raised airnly, I have to deal with
them. The first part of the contention is that an order returning the plaint for
presentation to the proper Court is a decree. It is impossible to find any
justification for such a contention. A decree is defined by section 2(2) of the
Civil Procedure Code as follows :-- "the formal expression of an adjudication
which, so far as regards the Court expressing it, conclusively determined the
rights of the parties with regard to all or any of the matters in controversy in
the suit and may be either preliminary or final. It shall be deemed to include
the rejection of a plaint and the determination of any question within section
144."
When a plaint is ordered to be returned for presentation to the proper Court, the
rights of the plaintiff and the defendant are not determined at all, let apart being
consciously determined. On the plain reading of the definition of decree, an
order returning the plaint for presentation to the proper Court is not a decree.
But this position is further made clear by the fact that under Order 43, Rule 1(a) of
the Code, an order returning the plaint for presentation to the proper Court is
specifically made an appealable order. If it is an appealable order, it is futile to
contend that it is a decree, because it is inconceivable that Code would provide that
the same order would be a decree and an order other than a decree at one the same
time.
This analysis also answers the other part of the contention namely, that the appeal
is not competent. As stated above, the learned Advocate chose just to throw these
points at the face of the Court. But it is really difficult to resists the employment of
the expression that he did so without least concern for the requisite sense of
responsibility. If he had not allowed his sense of responsibility to be given a miss,
he would certainly have had a look at the provisions of Order 43, Rule 1(a) of the
Civil Procedure Code which specifically makes an order for return of the plaint for
presentation to the proper Court passed under Order 7, Rule 10 of the Code, an
appealable order. Said Order 43, Rule 1(a) of the Code no doubt provides that the
order passed by following the procedure under Rule 10-A of Order 7 is not
appealable but it is nobody's contention that the procedure contemplated under
Order 7, Rule 10-A was ever followed by anybody including the Court in this case.
All that the Court has done is to decide the preliminary issue as to whether the
Court has jurisdiction to entertain the suit having regard to section 41 of the
presidency Small Causes Court Act and to hold that the Court has no such
jurisdiction. The Court has also passed an order that the plaint should be returned
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for presentation to the proper Court. But nothing laid down under Rule 10-A of
Order 7 is done by the Court in this connection. The order is passed as per the
provisions of Order 7, Rule 10 simpliciter and such an order is specifically and
unequivocally made appealable under Order 43, Rule 1(a) of the Code. The
appeal is, therefore, perfectly competent.
(ii) In the case of G.Loganathan v. S.Chenniya Chettiar, AIR 1996 Madras
224, a co-ordinate Bench of Madras High Court held as under:
"9. One other contention raised by the learned counsel for the respondent is with
regard to the maintainability of the C.M.A. as the lower Court has given concurring
finding with regard to the claim of the plaintiff. According to the learned counsel for
the respondent, even though the plaint has been returned by the learned Subordinate
Judge, Sankari, for presentation in the proper Court, as he has given the findings on
all other issues in favour of the plaintiff/ appellant, the order, must be treated as a
disposal on merit and therefore the appeal under order 43 Code of Civil Procedure
could not be entertained. Under Order 43, Rule 1 A, an appeal shall lie from an order
under Rule 10 of Order 7 Code of Civil Procedure returning a plaint to be presented
to the proper Court. In this case, the Appellate Court has returned the plaint for
presentation in the proper Court under Order 7, Rule 10 Code of Civil Procedure.
Therefore, certainly, the appeal is maintainable under Order 43, Rule 1A. A doubt
may arise from the explanation to Rule 10 of Order 7, which reads that: "For the
removal of doubts, it is hereby declared that a Court of appeal or revision may,
direct, after setting aside the decree passed in a suit the return of the plaint under
this sub-rule" * This explanation may lead to a doubt whether the Appellate Court
can return the plaint without setting aside the decree passed in a suit. The Appellate
Court having found that all the findings of the trial Court were erroneous may set
aside the decree. On such occasions, a question may arise whether it would be
necessary to return the plaint for presentation in the proper Court because the plaintiff
was non suited and there was no necessity for a trial. To answer this question, the
explanation to Rule 10 reads that even in such cases, the Court may return the plaint
after setting aside the decree passed in the suit. Anyway, in this case, the learned
Subordinate Judge has given clear finding that the plaintiff is entitled to the relief of
declaration and possession confirming the findings of the trial Court though he
differed only on the question of the pecuniary jurisdiction of the trial Court. As the
plaint has been returned under Order 7 Rule 10 Code of Civil Procedure, the
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appeal is maintainable under Order 43, Rule 1(a) of Code of Civil Procedure
and therefore, the filing of Second Appeal will not arise in this case. As I fully
agree with the contention taken by the learned counsel for the appellant, the
order of the Court below, which is erroneous, is unsustainable."
(iii) In the case of Lal Shankar v. Kachru & Laxmi, 2013 SCC OnLine Raj
3800, a coordinate bench of Rajasthan High Court also held as under:
"23. Consequently, in my opinion, order of return of plaint by deciding the
preliminary issue is not a decree and that is why there is a provision of appeal
under Order 43 Rule 1 CPC (appeals from orders) and not under Order 41
Rule 1 CPC (appeals from original decree) and second appeal under Section
100 CPC against the said order is not maintainable.
24. In my considered opinion, the order passed by the trial court on 28th January,
2005 is an order under Rule 10 of Order 7 and appealable under Order 43 Rule 1
(a) CPC and plaintiff-Kachru has wrongly filed the appeal before the first appellate
court under Order 41 Rule 1 CPC and first appellate court has also wrongly decided
the same and wrongly passed the decree also, because the question of drawing a
decree under Order 41 Rule 35 would not arise in that appeal. In my opinion, even
if formal decree is drawn in prescribed form by both the courts below or
wrongly drawn the decree would not make such an order a decree and any
decree drawn pursuant to such an order is immaterial, no body can take
undue advantage on mistake on the part of the court while drawing up decree
and the present second appeal is not maintainable.
25. In view of the above discussions, the order to return the plaint to the plaintiff
to file the same before the competent court is not a decree and against the above
order, appeal lies under Order 43 Rule 1 CPC and order passed in appeal is also
not a decree and hence second appeal would not lie under Section 100 CPC. Since
second appeal is maintainable against a decree and not against an order,
therefore, this second appeal, which is directed against the orders passed by
both the courts below is not maintainable. The same is liable to be dismissed
as not maintainable and hence it is not necessary for me to examine the
controversy involved in this appeal on merits."
10. From the aforesaid discussion and the judgments referred to hereinabove,
it clearly emerges that an order/judgment returning the plaint, whether passed by the
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Trial Court or by the First Appellate Court, does not amount to a decree, but is
appealable under Order XLIII Rule 1(a) of the Code of Civil Procedure.
11. Even prima facie, it appears that while considering the questions as
mentioned in above paragraph 6 of this order, the learned Court in the case of Ashok
Kumar Tamrakar (supra), could not take into consideration the aforesaid concurrent
legal position.
12. Bare perusal of the impugned judgment and decree shows, that even
though the First Appellate Court has, in place of order, passed a judgment and
decree, but except the question of jurisdiction of the Court, it neither considered
merits of the case nor set aside any other finding of the Trial Court and at the last
by setting aside the judgment and decree of Trial Court, directed the Trial Court to
return the plaint to the plaintiffs for filing before the competent Family Court having
jurisdiction over the matter.
13. In view of the aforesaid settled legal position and in my considered
opinion also, the order returning the plaint even by First Appellate Court, is not
amounting to a decree and is appealable under Order 43 Rule 1(a) of CPC and it has
no concern with the provision of remand under Order 43 Rule 1(u) of CPC. Since,
the aforesaid judgment in the case of Straw Produces Limited (supra) was not taken
into consideration by the learned Court, therefore, as per judicial discipline, I am
bound to follow the previous decision of this Court in the case of Straw Produces
Limited (supra). Further, the decisions in the case of Smt. Siddalingamma (supra),
Kapil P. Mohmed (supra), G. Loganathan (supra), Lal Shankar (supra) being on
the same line, I think it appropriate to follow them.
14. Resultantly, the instant second appeal is held to be not maintainable.
15. As prayed by learned counsel for the appellants, the second appeal is
permitted to be converted again into Misc. appeal.
(DWARKA DHISH BANSAL)
JUDGE
pb
SA-296 of 2026
