1. This is an appeal from a judgment of our brother S. D. Singh passed in a first appeal from. order passed by a Civil Judge under Order XLI, C. P. C. allowing an appeal and remanding the suit to the Munsif for re-trial after allowing the plaint to be amended in a certain manner. This appeal has been filed without special leave from S. D. Singh, J.
2. Sri Naziruddin conceded, and rightly conceded, that this appeal would be maintainable, if at all, under Chapter VIII, Rule 5 of Rules of Court. An appeal under Chapter VIII, Rule 5 filed as a matter of right i.e., without special leave of the Judge from whose order it is filed, is maintainable only if it is an appeal from a judgment and if the judgment was not passed by the learned Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a subordinate Court. We find that the order under appeal passed by our learned brother was not a judgment, because it did not dispose of the rights of the parties in controversy. The only thing that hedecided by his order under appeal was that the learned Civil Judge was justified in allowing the plaint to be amended and in remanding the suit. The suit is still pending in the Court of the learned Munsif and so long as it is pending it cannot be said that there is any judgment in existence. There cannot be a judgment unless it determines some right of the parties in controversy. Here no right has been determined by the order under appeal except the right to have the plaint amended, but that was not the right litigated in the suit. It must be a question relating to the subject-matter of the suit that must be decided by the order in order that the order becomes a judgment. Every judgment is an indication that the tribunal has made a finding as to the facts and rights upon which the applicant predicates his cause of action. In Tapesar Raut v. Ram Jatan AIR 1962 Pat 60 an order of a Judge setting aside a decree of a lower appellate Court and remanding the appeal to it for a fresh hearing was held to amount to a judgment, but in Elphinstone Spg. and Wvg. Mills v. Sondhi Sons (Private) Ltd : AIR1962Bom241 a Full Bench decided that an order of a Judge on the original side setting aside an ex parte decree is not a judgment. We respectfully agree with the latter decision. If an order setting aside an ex parte decree and requiring a fresh decision on the suit is not a judgment, an appellate Court's setting aside a decree and remanding the suit for a fresh hearing also is not a judgment within the meaning of the Letters Patent and of Rules of Court. Secondly, even if the order under appeal were a judgment, it was passed by our learned brother in respect of an order passed by the learned Civil Judge under Order XLI in the exercise of his appellate jurisdiction. An appeal from such a judgment is barred without special leave. We have not been able to understand why the order passed by the learned Civil Judge could not be said to be an order passed by him in the exercise of appellate jurisdiction. It could only be if it was not such an order that it could be said that the judgment passed by our learned brother is a judgment from which an appeal lies without special leave. It was not, and could not be, contended that the learned Civil Judge is not a Court subject to the superintendence of this Court. There are no words to qualify or restrict the words 'in the exercise of appellate jurisdiction' and a remand order passed by an appellate Court is an order passed in the exercise of appellate jurisdiction. It is only an appellate Court that has jurisdiction to remand a case under Order XLI, C. P. C., i.e., such an order can be passed only in the exercise of appellate jurisdiction.
3. The facts in Mohd. Sharif v. Union of India : AIR1961All82 were that Mohd. Sharif sued for a permanent injunction in the Court of the Munsif, his suit was dismissed as also his first appeal and he filed a second appeal and applied for a temporary injunction which was dismissed by a Judge of this Court and it was held that no appeal lay under Chapter VIII, Rule 5, because the order refusing the interim injunction was an order Dassed by the learned Judge in the exercise of appellate jurisdiction. The same view was taken by a Bench of this Court in Safdar Ali v. Sital Prasad Shukla, 1962 All LJ 859. A stay order can only be passed by a Court in exercise of its appellate jurisdiction, vide Order XLI, and just as passing or refusing a stay order is passing an order in the exercise of appellate jurisdiction, so also allowing an appeal and remanding a suit is an order passed in the exercise of appellate jurisdiction. An appeal from it can be filed only with special leave of the Judge passing it.
4. Sri Naziruddin referred us to Ram Sarup v. Mt. Kaniz Ummehani : AIR1937All165 , but it does not militate against what we have stated above. The only point decided there was that the provisions of the Letters Patent, which are similar to those of Chapter VIII, Rule 5 of Rules of Court, supersede the bar imposed under Section 104, C. P. C. on a second appeal from an order. It may be that the bar imposed by Section 104, C. P. C. does not operat, to prevent the instant special appeal from being filed, but the bar, imposed by Rule 5 Chapter VIII, Rules of Court, namely, that it cannot be filed in the absence of special leave of the Judge, stands. If there are two bars on the maintainability of an appeal and only one is removed the appeal is still not maintainable on account of the other : AIR1937All165 is an authority only in support of the removal of one bar and is no authority in support of the proposition that the other bar does not exist. It is on account of the other bar e.g., that bar imposed by Chapter VIII, Rule 5 of Rules Of Court that we hold this special appeal incompetent and not on account of the bar imposed by Section 104, C. P. C. In D. C. Jain v. C. L. Gupta : AIR1962All543 a Bench of this Court held that its power to entertain special appeal is a special jurisdiction and is not affected by the provisions of Section 104, C. P. C. Both these cases must be deemed to have been overruled by the Union of India v. Mohindra Supply Co : 3SCR497 laying down that Clause 10 of the Letters Patent is subject to the legislative power of Government and that if an appeal from a single Judge is prohibited by a statute Clause 10 will not be available and no appeal will lie.
5. We hold that this appeal is not maintainable and dismiss it summarily.