JUDGMENT :

1. Leave is granted to the learned advocate-on- record for the appellant to rectify the defect regarding the preamble of the memorandum of

appeal during the course of the day.

2. At the outset, a question of maintainability

arises with regard to the present second appeal.

3. The brief backdrop is that in a suit filed by the respondents herein, an application filed by the present appellant (defendant in the suit) under Order VII Rule 11 of the Code of Civil Procedure was allowed, thereby rejecting the plaint.

4. Against such deemed decree, a regular first appeal was preferred by the respondents which, by the impugned judgment, was allowed on contest by the First Appellate Court, thereby setting aside the deemed decree of rejection of plaint, giving rise to the present second appeal.

5. Learned counsel appearing for the appellant, in support of the maintainability of the present second appeal, cites a three-Judge Bench decision of this Court in the matter of Deputy Director, Employees’ State Insurance Corporation vs. Ward Memorial Church School and Anr. reported at 2023 SCC OnLine Cal 2914 where the Hon’ble Larger Bench inter alia observed, while finding that the issue arose as to when the First Appellate Court either affirms the order rejecting the plaint or reverses the order thereby restoring the suit to be tried on merits, what would be the remedy available to an aggrieved party, held that it is in effect an order of remand under Order XLI Rule 23 of the Code of Civil Procedure.

6. The Larger Bench further held that it is the nature of the jurisdiction that was emphasized and given predominance in the judgments discussed therein and ultimately found that the proper remedy in the said case would be to file a writ petition under Article 227 of the Constitution of India.

7. Although separate judgments were delivered by the Hon’ble Judges constituting the said Bench, the conclusion was the same, to the above effect.

8. Learned counsel further cites a judgment of a learned Single Judge of this Court in the matter of The Lieutenant Governor of Andaman and Nicobar Islands and Others vs. Andaman Plantation and Development Corporation Pvt. Ltd. (CO 75 of 2025) where it was held that, against an order whereby the First Appellate Court reversed the rejection of a plaint by the Trial Court, the exercise would be under Order XLI Rule 23 of the Code and as such, an appeal would lie against such order under Section 104, read with Order XLIII Rule 1(u), of the Code of Civil Procedure. While holding so, the learned Single Judge observed that the findings of the Larger Bench judgment referred to above, insofar as the contrary was held therein, were obiter dicta.

9. Lastly, learned counsel for the appellant cites K. Valarmathi and Others vs. Kumaresan reported at 2025 SCC OnLine SC 985 where the Hon’ble Supreme Court deprecated the invocation of constitutional powers for rejecting a plaint.

10. Heard learned counsel for the parties.

11. With utmost respect to the erudition of the members of the Larger Bench, in our opinion, the observation of the said Bench to the effect that an application under Article 227 of the Constitution of India will lie in the event the Appellate Court rejects an Order VII Rule 11 application was obiter dictum in the context of the said case.

12.The factual matrix of the said case was diametrically opposite to the present one. The question which was referred to the said Bench, in answer to which the judgment was passed by the Larger Bench, was as follows:-

“Whether the remedy lies by filing Second Appeal, if the Revisional Court reverses the order of the Trial Court refusing to reject the plaint, as a corollary effect the plaint is rejected in view of the definition of “decree” given under Section 2(2) of the Code.”

13. Thus, in the said case, the Trial Court had rejected the application for rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure, which was reversed by the First Appellate Court. As such,