IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL ON THE 6^th OF FEBRUARY, 2026 SECOND APPEAL No. 296 of 2026 SMT. GYANWATI AND OTHERS Versus ARJUN PATEL AND OTHERS Appearance:

Shri Durgesh Kumar Singrore - Advocate for the appellants. Shri Shakti Prakash Pandey - Advocate for the respondent 1. Shri Rezi Mathai - Panel Lawyer for the State/respondent 3.

ORDER This second appeal has been preferred by the appellants/plaintiffs challenging the judgment and decree dated 28.03.2024 passed by 5th District Judge, Mandla in RCA no.8/2023 reversing the judgment and decree dated 23.12.2022 passed by 3rd Civil Judge Senior Division, Mandla in regular civil suit no.800045/2016 whereby Trial Court decreed the appellants/plaintiffs’ suit filed for declaration of title, for declaring the sale deed null and void and for issuance of permanent injunction, but upon filing civil appeal by the defendant 1-Arjun Patel, First Appellate Court set aside the judgment and decree passed by Trial Court and finding the Trial Court to have no pecuniary jurisdiction, returned the plaint under Order VII Rule 10 CPC for filing the same before the competent Family Court.

2. Against the impugned judgment and decree, originally the appellants preferred misc. appeal under Order 43 Rule 1(u) of CPC treating the impugned judgment to be a judgment of remand, which was registered as Misc. Appeal No.4829/2024, but later on upon filing IA no.24282/2025, the Misc. appeal was permitted to be converted into second appeal and consequently, instant second appeal is listed before this Court for admission.

3. Since by way of instant second appeal, challenge is made to the judgment and decree directing return of the plaint for filing before the competent Family Court, therefore, upon asking question from the counsel for the appellants regarding maintainability of instant second appeal, he submits that in presence of an order passed by a co-ordinate Bench of this Court at Jabalpur in the case of Ashok Kumar Tamrakar vs. Neelkant Agnihotri and others (decided on 16.09.2025 in MA no.3033/2011), he was constrained to file an application for conversion of misc. appeal into second appeal and after conversion, he is pressing the second appeal and he prays for listing the second appeal for hearing after calling the record of Courts below. He also submits that he just wants to challenge the impugned judgment and decree and he has no objection in filing either the misc. appeal or second appeal.

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

5. Before passing any order on the question of maintainability of the second appeal, this Court is required to consider the ratio laid down by the learned Court in the case of Ashok Kumar Tamrakar (supra). Relevant paragraphs of the same are as under :-

"5. The first and foremost question which arises before this Court is as to whether the order passed by the appellate Court directing the trial Court to return the plaint is a remand order ? If not, then whether the same is appealable under Order 43 Rule

1 of CPC ?

6. In order to determine the said issue, it is apt to read the relevant provision regarding remand. Under the CPC, Order 41 deals with the appeals from original decrees and Rules 23 and 23-A thereunder speak about the remand of case by the appellate Court, same are quoted hereinunder :-

"23. Remand of case by Appellate Court. —Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded du