ORDER :

1. The present second appeal has been preferred against the judgment dated 06.08.2022 passed by the District Judge, Jodhpur Metro in Civil Appeal No. 15/2021 vide which the judgment and decree dated 14.09.2021 passed by the Civil Judge, Jodhpur Metro in Civil Original No. 15/2021 (222/2021) has been reversed. Vide judgment dated 14.09.2021, the learned trial Court proceeded on to allow the application under Order 7, Rule 11 of the Code of Civil Procedure as preferred by the defendant-appellant and consequently, rejected the plaint as preferred by the plaintiffs-respondents.

2. At the outset, it may be noticed that second appeal against the order passed by the first appellate Court setting aside the dismissal of the suit on preliminary point and remanding back the matter is not maintainable. In fact, an appeal under Order XLIII Rule 1 (u) CPC would be maintainable.

3. However, as the period of limitation and court fees etc., are the same in second appeal and misc. appeal, instead of requiring the appellant to file misc. appeal/convert the present second appeal into misc. appeal, in view of the fact that this Court, as of date, has the roster to hear both second appeal and misc. appeal, counsel for the appellant was heard on merits.

4. The facts of the case are that after death of mother of the plaintiffs who are the minor children, a gift-deed was executed by their father in their favour and defendant-Anand Chandel, the maternal grandfather of the minors, accepted the said gift on their behalf. The gift-deed mentioned the fact that the minors are in the guardianship of their maternal grandfather and further, vide the same, the right to rent out the property, recover the rent, to raise any construction on the property etc. were given to the defendant.

5. Subsequently, as the defendant started acting in contravention to the conditions of the gift-deed and stopped depositing the rent amount in the bank account of the minors and started making material alterations in the property, the suit for permanent injunction was preferred on behalf of the minors through their natural guardian father against the defendant maternal grandfather with a prayer, along with others, to restrain him from misappropriating the rent amount as well as from making any material alterations in the property in dispute.

6. In the said suit, an application under Order 7, Rule 11, CPC was preferred on behalf of the defendant with the submission that the reliefs as prayed for in the plaint, in effect, amount to the relief for cancellation of the gift-deed and therefore, without specifically praying for cancellation of the gift-deed and without paying the Court fees qua the said relief, the present suit simplicitor for injunction cannot be maintained.

7. The said application under Order 7, Rule 11, CPC as preferred by the defendant was allowed by the learned trial Court vide the order dated 14.09.2021 with the finding that the relief as prayed for by the plaintiffs in the suit could not be granted in their favour unless the gift-deed is declared to be void and hence, the suit is barred by law. As a consequence of the application under Order 7, Rule 11, CPC being allowed, the suit as preferred by the plaintiffs was dismissed.

8. The appeal against the said judgment and decree preferred by the plaintiffs was allowed and while setting aside the judgment and decree dated 14.09.2021, the learned trial Court has been directed to register the suit on its original number and proceed on for disposal of the same in accordance with law.

9. Aggrieved against the said judgment dated 06.08.2022 passed by the first appellate Court, the present second appeal has been preferred.

10. Heard learned counsel for the appellant and perused the material available on record.

11. The first appellate Court has reversed the order of the trial Court on the following grounds:

i. A bare reading of the plaint made it clear that the suit for permanent injunction was preferred against the defendant to