1. By order dated 3rd March, 2014, the learned Judge of the City Civil Court decided preliminary issue of jurisdiction against the plaintiffs i.e. present appellants and ordered that the plaint be returned to the plaintiffs for presentation before appropriate Court. Against the said order, present Appeal from Order is filed.

2. The learned counsel for the respondent objected the maintainability of Appeal against the said order and contended that though by the said order plaint is returned, it not to be construed as order passed under Order VII Rule 10 of the Code of Civil Procedure (for short called as, “Code”), but it is in fact an order of rejection of the plaint under Order VII Rule 11 of the Code or alternatively under Order XIV Rule 2 of the Code and hence the First Appeal lies against this order and not an Appeal from Order.

3. The order of return of plaint under Order VII Rule 10 of the Code, if passed then not a First Appeal under Order XLI, but an Appeal against Order under Order XLIII is to be filed. Return of plaint is not a decree though reasons in brief are required to be recorded in the said order.

4. In the present matter though the Judge has returned the plaint, he did not mention under which provision of the Civil Procedure Code, he has passed the order. However, the provision empowering the Court to return the plaint is none but under Order VII Rule 10 of the Code only. In the present case a relief was sought against the co-operative society which was added subsequently and therefore, objection was raised before the trial Court that it is an issue between a Co-operative Society and the Member of the said society and therefore, the Civil Court has no jurisdiction to decide the dispute between the society and its members. My attention was drawn to the fact that on 19th June, 2013 the trial Court framed the issues and thereafter on 6th September, 2013, Notice of Motion was decided with direction that the parties to maintain status quo and decide the issue so framed separately which is as follows:

“Whether this Court has jurisdiction to try and decide the suit?”

The court also observed that the issue of the jurisdiction goes to the root of the matter and therefore, it should be considered as preliminary issue.

5. The learned counsel for the respondent while objecting the maintainability of the Appeal from Order submitted that while invoking the powers under Order VII Rule 10, if the suit is instituted in the wrong Court, not having either territorial or pecuniary jurisdiction, then it is to be returned. It was submitted that if at all there is objection on the ground of subject of the suit and the Court has no jurisdiction, then the plaint cannot be returned, but the plaint needs to be rejected under Order VII Rule 11 Sub clause (d) of the Code. Sub clause (d) of Rule 11 of Order VII reads thus:

“11. Rejection of plaint. – The plaint shall be rejected in the following cases:— (a) xxx xxx xxx

(b) xxx xxx xxx

(c) xxx xxx xxx

(d) where the suit appears from the statement in the plaint to be barred by any law;”

6. The learned counsel submitted that the jurisdiction of the Civil Court is expressly barred under the Maharashtra Co-operative Societies Act, and therefore, the order cannot be said to be passed under Order VII Rule 10, but it is the order under Order VII Rule 11, hence Appeal is not maintainable instead First Appeal should have been filed. In support of his submissions, he relied on the judgment of Division Bench of this Court in Ltd. Col. Anil Bhat and Nadiya Bhat of Delhi vs. Citibank N.A., reported in A.I.R. 2009 Bombay 99. In the said case there was an order of rejection of plaint when the respondent bank filed suit for recovery of security before D.R.T. and the objection was raised whether after Tribunal came to the conclusion that it had no jurisdiction over the subject matter, could it then pass consequential order of rejection of plaint by exercising powers of Civil Court under the Civil Procedure cod