1. The plaintiffs are junior members of a tarwad, who sought to avoid a decree passed against a junior member of the family and the karnavan personally and against the karnavan as representative of the tarwad. They alleged that the karnavan did not represent them in that suit; but they also gave reasons why they would not be bound by the decree even if he was the karnavan and represented the tarwad. So it would seem that they wished their case to be discussed both on the basis that the karnavan did not represent them in that suit and on the basis that he did. No court-fee was paid to have the decree set aside; and they sought a declaration that the decree was not binding on them. The first Court held that the 'plaintiffs had not paid sufficient court-fee; for it was necessary to set aside the decree to grant them all the reliefs they prayed for. The plaint was therefore rejected. As the rejection of a plaint is deemed to be a decree under Section 2(2) of the Civil Procedure Code, an appeal was preferred; and the learned District Judge held that since there was an allegation in the plaint that the karnavan did not represent the present plaintiffs in that suit, they need pay court-fee only on that basis. He therefore allowed the appeal, set aside the order of the lower Court, and remanded the suit to the lower Court for trial on the merits.
2. A preliminary objection is taken that no appeal lies. The Government, as appellant, says that the order in question is an order of remand and is therefore covered by Order 41, Rule 23 of the Civil Procedure Code. This rule deals with two types of cases : (1) where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and (it) where the appellate Court in reversing or setting aside a decree under appeal deems it necessary in the interests of justice to remand the case. In my opinion, the present case does not fall within either of these two categories. The suit was not disposed of on a preliminary point. The Court, by rejecting the plaint, refused to consider the suit. Although the learned District Judge said that he was remanding the appeal, he did not in fact do so, his order amounting to a direction to the trial Court to entertain the plaint and proceed with the suit. The Government rely on Madhorao v. Kesho I.L.R. (1941) Nag. 629, where a single Judge of the Nagpur High Court held that Order 41, Rule 23 would apply to an order of an appellate Court. The learned Judge said:
In Raman Nqyar v. Krishnan Nambudripad : AIR1922Mad505 , the Madras High Court defined a preliminary point as any point whether of fact or law the decision of which avoids the necessity for the full hearing of the suit. In Govinda v. Baliram (1930) 27 N.L.R. 226, I held that a preliminary point is one which when determined in favour of the plaintiff permits the progress of the suit but when determined against him concludes the suit.
Even if we accept the definition of the learned Judge of a preliminary point, it would not include an order rejecting a plaint; for the order was not one concluding the suit. The suit had never Been taken up for trial; and the suit could not be disposed of until the plaint had been accepted. The learned Judge dissents from a decision of a single Judge of the Lahore High Court in Basheshar Nathv. Bidhi Chand 4 in which it was held that the rejection of a plaint was not disposal of a suit on a preliminary point. BashesharNath v. Bidhi Chand A.I.R. 1937 Lah. 380 followed an earlier decision of the same Court in Cotton Trading Syndicate Commission Agency v. Malawmal A.I.R. 1929 Lah. 83 where it was held that the rejection of a plaint was not a disposal of a suit on a preliminary point. The learned Government Pleader refers to two Calcutta cases in which it was held that a second appeal lay in cases where the appellate Court agreed with the trial Court that the plaint could not be admitted. The case of a second appeal is however very different from an order of remand. Although the learned Judges gave no season why a second appeal should He, yet it might be argued that where the appellate Court dismissed the appeal, the order was tantamount to again rejecting the plaint and therefore gave rise to another appeal. It might also perhaps be said that since the rejection of a plaint is deemed under Section 2(2) of the Code to be a decree, Section 100 of the Code would apply and give a right of second! appeal. A civil miscellaneous appeal would however be admissible only if the provisions of Order 41, Rule 23 were complied with. Moreover, it would seem anomalous when an order refusing to reject a plaint is not made appealable that the order of an appellate Court which has the same effect should be appealable. I therefore agree with the learned advocate for the respondents that an appeal does not lie.
3. The learned Government Pleader however argues that even though an appeal does not lie, he has a right to come to this Court in revision, because the first Court gave him a valuable right in rejecting the plaint and if the lower Court for wrong reasons ordered the plaint to be admitted it would give rise to a question of jurisdiction which this Court can consider in revision. The learned Government Pleader has pointed but a distinction between a case like the present and one where the trial Court has refused to levy more court-fee from the plaintiff and the defendant has sought to invoke the powers of this Court under Section 115 to set aside the first Court's order. Whether that distinction can or cannot be drawn, there is no doubt that this Court can interfere in revision if the facts justify it in doing so.
4. The learned District Judge would be right if the plaintiffs were content to base their case entirely on their allegation that the karnavan did not represent them in the suit and that the decree is therefore void. If, however, the plaintiffs fail to establish their allegation that the decree is void for want of proper representation in the suit, they would not be able to have the decree set aside so far as they were concerned without paying the proper court-fee for avoiding the decree. I am requested by the learned advocate for the respondents to give the plaintiffs some further time to consider their position and to pay further court-fee if they deem it advisable. They will be given two months for that purpose after the records reach the lower Court.
5. The parties will bear their own costs in this Court.