The main legal point established in the judgment is the interpretation and application of Order XLIII Rule 1(u) of the CPC in determining the maintainability of a second appeal against a remand order.

JUDGMENT :

1. This recall application has been moved by the defendant-respondent no. 1 for recall of the order dated 07th March, 2017, whereby this Court has admitted the second appeal, issued notices to the respondents and granted interim order. The recall application has been filed on the ground that the second appeal is not maintainable against a remand order in view of the provisions of Order XLIII Rule 1 (u) of the Code of Civil Procedure, 1908, [CPC].

2. The plaintiff-appellant had instituted a civil suit in the Court of the Civil Judge, Senior Division, Hapur, which was registered as O.S. No. 66 of 2008, Ashok Kumar Sharma v. Smt. Rameshwari and others, for permanent injunction restraining the defendants from interfering in his possession over the suit property and to declare the sale-deed dated 10th December, 2007 as void and non est. The defendants contested the matter and the plaintiff's suit was decreed vide judgment and decree dated 09th March, 2016. Aggrieved by the said judgment and decree of the trial Court, the defendant-respondent no. 1 preferred a civil appeal, being Civil Appeal No. 29 of 2016, Smt. Beena Sharma v. Ashok Sharma and others, which was allowed by the lower appellate Court vide its judgment and decree dated 02nd February, 2017 and the judgment and decree dated 09th March, 2016 of the trial Court was set aside and the matter was remanded back to the trial Court to decide the matter afresh in the light of the observations made by the lower appellate Court.

3. Against the said remand order and decree dated 02nd February, 2017 and 13th February, 2017 respectively passed by the District Judge, Hapur in Civil Appeal No. 29 of 2016, the present second appeal has been filed by the plaintiff-appellant.

4. In the second appeal, vide order dated 07th March, 2017 the appeal has been admitted, notices have been issued to the defendants-respondents and the parties have been directed to maintain status quo. Against this order dated 07th March, 2017 the present recall application has been filed.

5. I have heard learned counsel for the applicant-respondent no. 1 and learned counsel for the appellant.

6. Learned counsel for the applicant-respondent no. 1 has urged that in view of the provisions of Order XLIII Rule 1(u) CPC the second appeal is not maintainable against the remand order. He has placed reliance on a judgment of the Supreme Court in Jegannathan v. Raju Sigamani and another, (2012) 5 SCC 540.

7. Learned counsel for the appellant-plaintiff has placed reliance on a judgment of the Supreme Court in the case of Narayanan v. Kumaran and others, (2004) 4 SCC 26 in support of his submission that the second appeal is maintainable.

8. I have considered the rival submissions of learned counsel for the parties and perused the material on the record.

9. Concededly, the second appeal has been filed against a remand order. The operative portion of the judgment and order of the lower appellate Court dated 02nd February, 2017 reads as under:

^^rnuqlkj ;g vihy Lohdkj dh tkrh gSA v/khuLFk U;k;ky; dk fu.kZ; o fMØh fnukafdr 09-03-2016 fujLr dh tkrh gSA v/khuLFk U;k;ky; dks i=koyh bl funsZ'k ds lkFk okfil Hksth tkrh gS fd og Åij fd;s x;s foospuksa o lanfHkZr fof/k o lqLFkkfir fof/k ds ekxZn'kZd fl)karks ds lanHkZ esa i{kks dks lk{; o lquokbZ dk volj nsdj iqu% ekeys esa fu.kZ; o fu"d"kZ ;Fkk 'kh?kz 4 ekg esa nsxhA^^

10. I have perused the initial report of the Stamp Reporter, which does not raise any objection regarding maintainability of the appeal. A fresh report was called for from the Stamp Reporter, who made the following report on 11th March, 2019:

“In compliance with Hon'ble Court's order dt. 06.3.19, S.R. has to submit that on going through the appellate order, it transpires that the instant appeal has been filed against the remand order. Hence, the second appeal is not maintainable.

Inconvenience caused to the Hon'ble Court is deeply regretted.”

11. Order XLIII Rule 1(u) CPC reads as under:

“1. Appeals from order.—An appeal