Uttarakhand High Court
AO/65/2021 on 13 August, 2021
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Date COURT'S OR JUDGES'S ORDERS
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13.08.2021
AO No. 65 of 2021
Hon'ble Sharad Kumar Sharma, J.
(Through Hybrid Mode)
Mr. Tarun Prakash Singh Takuli, learned
counsel for the appellants.
The plaintiffs (appellants herein), had
preferred this Appeal from Order, challenging the
part of the order dated 03.02.2021, by virtue of
which, the issue No. 3, pertaining to the
maintainability of the Suit, before the Civil Court in
view of the bar created under Section 331 of the
U.P.Z.A. & L.R. Act, has been decided against
them. However, by the said order, two issues were
decided i.e. issue No. 2, pertaining to valuation and
issue No. 3, pertaining to the bar of Section 331 of
the U.P.Z.A. & L.R. Act. It is only a partial
challenge, which has given to the said order by the
appellants' counsel, contends that, the order of
returning the plaint on account of the bar created
under Section 331 of the U.P.Z.A. & L.R. Act, will
fall to be within the ambit of Order 7 Rule 10 of the
CPC and, hence in view of the provisions contained
under Order 43 Rule 1(a) of the CPC, the only
remedy available to the appellants, would be to
prefer an Appeal from Order.
This argument of the learned counsel for
the appellants is not accepted by this Court, for the
reason being that, an issue decided with regard to
the bar on maintainability of Suit under Section 331
of the U.P.Z.A. & L.R. Act, would be revisable in
view of the simplicitor language of the provisions
contained under Section 115 of the Code of Civil
Procedure, and would not be appellable under
Order 43 Rule 1(a) of the CPC.
It is not only that, even if it is presumed
that the order would be revisable, then too, as
against the order passed by the learned Civil Judge
(Junior Division), Sitarganj, district Udham Singh
Nagar, deciding the said issue, the proceedings
before the High Court by way of an Appeal from
Order would not be tenable, a very peculiar
argument has been raised by the learned counsel for
the appellants, that under the provisions contained
under Order 43, the appeal would only lie before
the High Court and there is no other Forum which
is available except under Section 104 of the CPC of
filing of an Appeal from Order, even if the
argument of the learned counsel for the appellants
is accepted, I am of the considered view that, as
against the judgment /order, which was decided by
the learned Civil Judge (Junior Division), Sitarganj,
district Udham Singh Nagar, the same would not be
appealable under Order 43 Rule 1(a) of the Code of
Civil Procedure, particularly when it relates to
deciding the issue No. 3.
Hence, this Appeal from Order itself is
not maintainable. The same is accordingly,
dismissed.
(Sharad Kumar Sharma, J.)
13.08.2021
Mahinder/
