The lower appellate Court's order remanding the suit must be treated as one under O. 41, R. 23, Civil P.C., and the trial Court failed to exercise proper discretion in refusing to extend time for the plaintiff to make good the deficient court-fees.

Niyogi—This is defendant 1's appeal from the order of remand made by the Second Additional District Judge, Nagpur, in Civil Appeal No. 43 of 1939 on 9th January 1940. Respondent 1 instituted the suit out of which this appeal arises for a declaration that the sale deed dated 4th March 1920 executed by his brother for himself and on his behalf was bogus and fraudulent and for possession of his half share in the house. At a somewhat advanced stage in the suit the appellant raised the pleas that the value of the house was Rs. 8000 and that the plaintiff was bound to pay court-fees on Rs. 4000, the value of his half share in the house. The trial Court found that the value of the house was Rs. 6000 and that the plaintiff was liable to pay court-fees on RS. 3000. The plaintiff was allowed to make good the deficient court-fees which he was unable to do with the result that his plaint was rejected under O.7, R. 11, Civil P.C. The plaintiff having appealed to the lower appellate Court, that Court concurred in the trial Court's finding that the value of the house is Rs. 6000 but was of opinion that the plaintiff was not liable to pay court-fees on the value of the improvements made by the purchaser (appellant) which enhanced the value of the house to Rs. 6000. It further held that the trial Court ought to have extended time to enable the plaintiff to make good the deficiency.

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 non-compliance 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. Krishnan Nambudripad, 1922 AIR(Mad) 505. the Madras High Court defined the preliminary point as any point whether of fact or law the decision of which avoids the necessity for the full hearing of the suit. In Govinda v. Baliram, 1930 AIR(Nag) 295. I held that a preliminary point is one which when determined in favour of the plaintiff permits the progress of the suit but when determined against him concludes the suit. In that case I had envisaged the possibility of the lower appellate Court's remanding the suit on setting aside the rejection of a plaint was an order falling under O.41, R. 23, Civil P.C. I see no strong reason with due respect to the view taken in Basheshar Nath v. Bidhi Chand, 1937 AIR(Lah) 380 to depart from the opinion expressed in the aforesaid case.

3. The preliminary points may arise before or after admission of the plaint. In either case if the decision on the preliminary point is against the plaintiff that would stop the further progress of the suit so as to compel the Court to dispose of the suit finally without deciding the merits of the controversy. The words ''where the Court from whose decision'' and the ''decree is reversed in appeal'' occurring in R. 23 of O. 41, are significant. The words used are ''disposed of the suit'' and not ''decided the suit''. Those words literally apply to a case of rejection of a plaint. The order rejecting a plaint has the force of a decree under S. 2 (2), Civil P.C., and the rejection of the plaint brings about the disposal of the suit. When an appeal is preferred against an order rejecting a plaint which has the force of a decree and the appellate Court sets aside that order it. has to remand the case for the trial of the issues arising in the case. The order of remand could not be made under