ORDER

1. Heard on I.A. No. 22910/2025, which is an application/objection to the maintainability of miscellaneous appeal filed under Order 43 Rule 1(u) CPC.

2. Learned counsel for the respondent 1/plaintiff submits that a suit was filed on 20.5.2024 by the respondent 1/plaintiff for declaration of title, permanent injunction and for cancellation of amended partnership deed and upon service of summons of plaint, the appellants/defendants 1-2 instead of filing written statement, filed an application under Section 8 of the Arbitration and Conciliation Act, 1996 (in short ‘the Act of 1996’) r\w Order 7 rule 11 CPC with the contentions that there being an arbitration clause, the suit before civil Court is not maintainable, which was opposed by the plaintiff, but after hearing the parties, trial Court vide final order dtd.13.9.2024 rejected the plaint in the light of section 8 of the Act of 1996. Against which regular civil appeal was preferred by the plaintiff which by the impugned judgment and decree dtd.17.4.2025 was allowed by setting aside the order dtd.13.9.2024 and suit was remanded to the trial Court with the further direction to restore it to its original number and to decide on merits after framing necessary issues and after giving due opportunity of adducing evidence to the parties. With the support of decision in the case of Basheshar Nath Goela v. Bidhi Chand & Ors., AIR 1937 Lahore 380 , he submits that against the impugned judgment and decree of remand passed by the First Appellate Court, remanding the suit to the Trial Court for decision afresh, miscellaneous appeal under Order 43 Rule 1(u) CPC is not maintainable and deserves to be dismissed as not maintainable.

3. In turn, learned counsel for the appellants/defendants 1-2 submits that since by passing the impugned judgment and decree, the First Appellate Court has by setting aside the order dtd.13.9.2024 passed by trial Court, remanded the suit to the Trial Court for fresh decision on merits, therefore, the appellants have rightly filed the misc. appeal under Order 43 rule 1(u) CPC and there is no other remedy available in the CPC. He places reliance on the decision given by Hon’ble Supreme Court in the case of Jegannathan v. Raju Sigamani and Anr., (2012) 5 SCC 540. With these submissions, he prays for dismissal of the application (I.A. No.22910/2025).

4. Heard learned counsel for the parties and perused the record.

5. Apparently, the Trial Court rejected the plaint by allowing the application filed under section 8 of the Arbitration and Conciliation Act, 1996 r\w Order 7 rule 11 CPC and by way of the impugned judgment and decree, the First Appellate Court has set aside the order dtd.13.09.2024 passed by the Trial Court and remanded the suit to the trial Court for fresh decision on merits after recording evidence of the parties.

6. Said decision in the case of Basheshar Nath Goela (supra), relied upon by learned counsel for the respondent 1, came into consideration before a coordinate Bench of Nagpur High Court in the case of Madhaorao Ganesh Despande v. Keshao Gajanan Huddar and another, AIR 1941 Nagpur 304, but was not followed and it was held that :

“2. A preliminary point is raised on behalf of the plaintiff against the tenability of this appeal on the ground that the remand order was not one based under O. 41, R. 23, Civil P.C., liable to appeal under 0.43, R. 1 (u), Civil P.C. Reliance is placed on :Basheshar Nath v. Bidhi Chand, 1937 AIR(Lah) 380 Although there is a discussion in that case as to whether the appellate Court's order remanding the suit after setting aside an order of rejection of the plaint was one made under 0.41, R. 23, the decision of the case actually rested on the view that rejection of the plaint for noncompliance of S. 80, Civil P.C., was not to be regarded as one falling under O.7, R.

11. I fail to see why rejection of a plaint cannot be regarded as a preliminary point in an appeal from the rejection of a plaint. In Raman Nayar v. Kris