A.N. Venugopala Gowda, J.

This appeal is preferred by the plaintiff against a Judgment of remand passed by the I Addl. Dist Judge, Vijaypur directing the Trial Court that an issue framed by it be heard as preliminary issue and if it is held that the suit is maintainable, then to decide the suit on all issues.

2. Material facts required to decide this appeal are that the appellant filed the suit to pass decree of declaration and perpetual injunction in respect of the suit property. By a decree, dated 03.07.2008 the suit was dismissed. An appeal filed was allowed and the case remanded for decision afresh by giving opportunity to the parties to adduce evidence. After remand the plaint was amended to incorporate alternate relief of recovery of possession. Written statement was filed. Seven issues were raised. Both sides adduced evidence, oral and documentary. A Court Commissioner appointed to conduct local inspection having executed the Commission Warrant was examined. Record relating to execution of the Commission Warrant and Report were marked. Upon hearing of arguments suit was decreed and the plaintiff was declared as owner of suit property. However, the relief of possession and perpetual injunction was negated. Feeling aggrieved, the plaintiff filed appeal and the defendants filed cross objections. After hearing of arguments, the following points were raised for consideration :

"(1) Whether the framing of issue regarding maintainability of suit by the lower Court is necessary for disposal to hear this appeal on the merits of the case?

(2) Whether the respondents/defendants are entitled to seek relief under cross-objections as prayed for against the judgment and decree in appeal?"

3. By answering point No. 1 in the affirmative and point No. 2 in the negative and after framing an issue, the appeal was allowed and the cross-objection was dismissed. The issue framed reads thus:

"Whether the suit of the plaintiff is maintainable in a representative capacity seeking relief of declaration of title with possession and relief of injunction and in alternate relief in case, any portion of the suit property not found in possession, to hand over the possession"

The impugned Judgment and Decree was set aside and case remitted to Trial Court with a direction that the issue framed (extracted supra) be heard as preliminary issue and if it is held that the suit is maintainable, then to decide the suit on all issues. Assailing the said Judgment, this Miscellaneous Second Appeal, under Order 43, Rule 1 (u), CPC, was filed.

4. Sri. Ameet Kumar Deshpande, learned advocate contended that Lower Appellate Court has acted illegally in remitting the case for the second time to Trial Court. He submitted that despite the defendants not raising question regarding maintainability of the suit, either before the Trial Court or before the First Appellate Court, issue relating to maintainability was raised and as a short-cut, case was remanded. He submitted that issue relating to maintainability of the suit, in suing the defendants in their representative capacity, is not one which would affect the jurisdiction of Court. He submitted that despite suit being maintainable and Lower Appellate Court being competent to decide even the issue relating to maintainability has committed illegality in passing Judgment of remand. Learned counsel criticised the approach of Appellate Judge and contended that the learned Appellate Judge has shirked from his responsibility in deciding the entire case on its merit by appreciation of the record. Learned advocate submitted that the impugned Judgment has caused substantial injustice and given rise to substantial questions of law, raised in the appeal memorandum. Reliance was placed on an order passed in the case of Mohammed Nayazulla v. The Hassan District Central Co-operative Bank Ltd. and another (W.P. No. 291/2014 decided on 02.04.2014).

5. Sri Harshavardhan R. Malipatil, learned advocate on the other hand submitted that havi