The rejection of the plaint of a suit under Order VII Rule 11 is not a decision on a preliminary point and does not fall within the scope of Order XLI Rule 23. The explanation appended to Order XLI Rule 17 does not restrict the power of the appellate court to decide the maintainability of an appeal.

JUDGMENT

Biswajit Basu, J. - This is an application for restoration of the appeal being F.M.A. No. 1 of 2021 upon recalling of the order dated December 15, 2021 whereby the appeal was dismissed as misconceived.

2. Learned advocate for the appellant/petitioner submits that the instant appeal was initially filed in the Principal Bench of the High Court but transfer of it to this Circuit Bench completely skipped the notice of the learned advocate on record for the appellant, as a consequence thereof, the appellant could not be represented on December 15, 2021 resulting dismissal of the present appeal.

3. He further submits that the explanation appended to Order XLI Rule 17 of the Code of Civil Procedure puts a bar to the power of the appeal Court to dismiss an appeal on merit in the absence of the appellant/petitioner, since, dismissal of the appeal as misconceived amounts to dismissal of it on merits, in the absence of the appellant the appeal should not have been dismissed as such.

4. On the point of maintainability of the appeal, learned advocate for the appellant/petitioner submits that the learned Trial Judge disposed of the suit on a preliminary point of maintainability. The Appeal Court reversed the said order of the learned Trial Judge and directed trial of the suit on all points, such a direction of the Appeal Court below comes within the sweep of Order XLI Rule 23 of the Code, consequently, the said order is open to appeal under Order XLIII Rule 1(u) of the Code, to support his such contention he places reliance on the decision of the Hon'ble Supreme Court in the case of Liverpool & London S.P. & I Association Ltd. vs. M.V. Sea Success I and Another reported in (2004) 9 SCC 512. He argues that nevertheless, an order passed under Order VII Rule 11 of the Code being in the nature of preliminary judgment, is open to appeal. He refers to the decision of the Hon'ble Supreme Court in the case of Jegannathan vs. Raju Sigamani and Anr. reported in (2012) 5 SCC 540 to contend that an order of remand is an appellable order. On the merit of the application under Order VII Rule 11 of the Code, he places reliance on a decision of the Hon'ble Division Bench of our Court in the case of Rajendra Prasad Shewda vs. Kishori Debi Joshi & Ors. reported in (2009) 1 CLT 197. He concludes by submitting that the case of Amal Chandra Mondal vs. Anita Biswas & Anr. reported in (2006) 2 Cal LJ 180 has no manner of application in the facts and circumstances of the present case.

Heard learned advocate for the appellant, perused the materials-on- record.

5. The Court of first instance, if disposes of a suit on a preliminary point, the provision of Order XLI Rule 23 of the Code enables the appellate Court to remand the case to the Court of first instance for determination of such suit on merits but in order to invoke the said provision of the Code, the suit is required to be disposed of on a preliminary point. The trial Court, by rejecting the plaint on any of the grounds under Order VII Rule 11 of the Code refuses to entertain the plaint of the suit only, such an order is not an order disposing the suit on preliminary point, therefore, in setting aside the said order and directing trial of the suit on merits, the appeal Court does not exercise the power under Order XLI Rule 23 of the Code.

6. In the present case, the learned Trial Judge rejected the plaint of the suit under Order VII Rule 11(d) of the Code, in the appeal from the said order, the appellate Court set aside the said order and directed trial of the suit on merit with the following observation:

let the case record be sent on remand with a direction upon the learned court below to decide the suit after recording evidence adduced by both the parties in the suit.

The Appeal Court below while directing the Trial Court to decide the suit after recording the evidence although has used the term remand but, in fact, it did not do so. The observations of the learned Single Judge of the Madras High Court