1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.520 OF 2008 Ichalkaranji Municipal Council ...Appellant Versus Sou.Surekha Sharadchandra Mehta ...Respondent ...... Mr.T.S.Ingale for Appellant. Mr.N.J.Patil for Respondent. ...... CORAM:- A.M.KHANWILKAR, J. DATED:- NOVEMBER 24, 2009. P.C. 1. Heard Counsel for the parties. 2. By consent, Appeal is taken up for final disposal as short question is involved. 3. This Second Appeal takes exception to the Judgment and Order dated 4th February 2008 passed by the District Judge-I, Ichalkaranji in Regular Civil Appeal No.282 of 2005. It is not in dispute that the Trial Court in the Suit filed by the Appellant being Regular Civil Suit No.271 of 1997, by order dated 19th July 2005, opined that it had no jurisdiction to decide the Suit. Accordingly, 2 the Plaint was returned to the Plaintiff as per Order VII Rule 10 of the Code of Civil Procedure (hereinafter referred to as `the C.P.C.’) for presentation before the proper Court. Against the said decision, the Respondent carried the matter in appeal before the District Court. The District Court by the impugned decision dated 4th December 2008 allowed the Appeal and instead, decreed the Suit filed by the Respondent/Plaintiff. 4. In the present Appeal, besides questioning the approach of the Appellate Court in decreeing the Suit, the Appellant, in principal, has questioned the jurisdiction of the District Court to entertain regular appeal against the decision of the Trial Court which was simplicitor one of returning the plaint under Order VII Rule 10 of C.P.C. Such order is amenable to Appeal from Order by virtue of provisions in Order XLIII Rule 1(a) of the C.P.C. which clearly provides that an order under Rule 10 of Order VII returning a plaint to be presented to the proper Court, an appeal from order shall lie against such order. This is the limited controversy on the basis of which I am inclined to allow this Appeal. The Appeal as presented by the Respondent was unavailable against the decision passed by the Trial Court. The provisions of C.P.C. plainly provide that an Appeal from Order against such decision can be maintained, which was required to be filed before this Court. 5. Without expressing any opinion on the merits of the controversy, the impugned decision passed by the District Court in regular Civil Appeal No.282 of 2005 dated 4th February 2008 is set- 3 aside. It is further ordered that the regular Appeal filed by the Respondent before the District Court was not maintainable. However, this order shall not preclude the Respondent from filing Appeal from Order before this Court, if he so desires. Indeed, if the Respondent were to now file Appeal from Order before this Court against the decision of the District Court which has been set-aside dated 4th February 2008, the same would be barred by limitation. However, Counsel for the Appellant, in all fairness, submits that since the Respondent was pursuing remedy before the wrong Court and the decision of that Court has now been set-aside by this Court, the Appellant would not raise objection to the maintainability of the proposed Appeal from Order to be filed by the Respondent being barred by limitation, provided, the Respondent were to file such Appeal from Order within 30 days from today. The Respondent through Counsel assures to present the Appeal from Order within the above specified time. Appeal disposed of on the above terms. A.M.KHANWILKAR, J.