1. This civil 2nd appeal is directed against the judgment and decree passed by the 1st appellate court, Court of Principal District Judge, Pulwama in an appeal titled Mst. Mukhti v. Ali Mohammad Bhat and ors dated 18th September, 2007, whereby judgment and decree passed by the trial court viz. Sub Judge (Chief Judicial Magistrate) Shopian, was set-aside and case was remanded to the trial court for disposal under law.

2. It appears that a civil suit titled Ali Mohammad Bhat and ors. v. Abdul Khaliq Bhat had been filed before the court of Sub Judge, Shopian, praying for a decree of declaration and permanent injunction.

3. Trial court, after making threadbare discussion, decided ultimately the suit in favour of plaintiffs and against the defendants and ordered issuance of a decree, vide its judgment and order dated 26th April, 2003.

4. The said judgment was appealed against before the court of learned District Judge, Pulwama, who disagreed with the conclusion arrived at by the trial court, therefore, set-aside the judgment and remanded the case to the trial court. While so directing, the trial court has been told to take into consideration the written statement of the respondents herein and decide the matter strictly as per the procedure as contained in the Code of Civil Procedure, for short CPC.

5. Against this order of learned District Judge, Pulwama, the instant civil second appeal has been preferred.

6. The moot question for consideration, in the first instance, would be, as to whether the remand order made by the Appellate Court in terms of Order XLI Rule 23, of the CPC, can be assailed by the medium of a Civil Second Appeal? The answer is in negative for the following reasons:

7. The trial court has not decided the matter finally but has remanded it for trial in terms of Order XLI Rule 23 of CPC, thus the order falls within the compass of Order XLIII Rule 1 (U) CPC. The said Rule, for facility of reference, is reproduced herein, thus:

"An order under rule 23 or rule 23-A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court."

8. The reproduced rule position makes it explicit that order under challenge can only be questioned, by the medium of a Civil Miscellaneous Appeal and not by Civil Second Appeal. And that appeal is to be diarized as such and is to be determined as per the mandate of section 100 of CPC. My view is fortified by Apex Court judgment reported in 2012 SCW 2523 titled Jegannathan v. Raju Sigamani & Anr. It is apt to reproduce Paragraphs 15 and 17 of the said judgment herein, thus:

"15. Insofar as the present case is concerned, the trial Court had disposed of the suit on merits and not on a preliminary issue. The first appellate Court set aside the judgment and decree of the trial Court and directed the trial Court to decide the suit afresh after giving parties an opportunity to lead evidence both oral as well as documentary. The nature of the order passed by the appellate Court leaves no manner of doubt that such order has been passed by the appellate Court in exercise of its power under Order 41 Rule 23A of the Code.

17. It is clear from the above provision that an order of remand passed under Order 41 Rule 23A is amenable to appeal under Order 43 Rule 1 (u) of the Code."

9. Registry is, therefore, directed to diarize the same as Civil Miscellaneous Appeal.

10. Now another question is, as to whether any substantial question of law is made out?

11. In order to find an answer to the said question, the controversy needed a relook, therefore, pages of the suit filed before the court of Sub Judge, Shopian; judgment and decree passed thereon, the appeal preferred against such judgment and decree and last but not the least, the impugned judgment.

12. What emerges from the perusal of these documents is that a suit had been filed by the appellants herein for permanently restraining respondent no. 4 herein from causing any interference in the peaceful possession of appellants over the suit

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