{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5083 OF 2008 Sambhaji Amrata Kolhe R/o Shri Dhanwantari Cooperative Housing Society, Near Deep Nagar, Taroda (Kd), Nanded PETITIONER VERSUS 1. Gayabai Rohida Dhavale R/o Purnimanagar, Nanded 2. Shri Dhanwantari Cooperative Housing Society, Through its Chairman Tukaram Dattatraya Talankar 3. Shri Dhanwantari Cooperative Housing Society, Through its Secretary Shamsundar Ganpatrao Narsikar RESPONDENTS ....... Mr.P.R.Katneshwarkar, Advocate for petitioner Mr.U.B.Bilolikar, Advocate for respondent No.1 Mr.Amol Gandhi, Advocate for respondents No.2 and 3 (Absent) ....... [CORAM : A.V.POTDAR, J.] DATE : 17th June 2009 ORAL JUDGMENT: {2} 1. By the present petition, under Article 227 of the Constitution of India, the petitioner / original defendant No.1 has challenged the order dated 03.05.2008 passed by 2nd Ad Hoc District Judge, Nanded in Miscellaneous Civil Appeal No.75/2006. 2. Rule. Rule made returnable forthwith. With the consent of the parties heard finally at the stage of admission. 3. With the assistance of learned counsel for the parties, perused the record. It appears that respondent No.1 has filed RCS No.106/2004 against the petitioner and respondents No.2 and 3 for recovery of possession and for mesne profits of the property mentioned in plaint para No.1. It also appears that after service of summons the petitioner and respondents No.2 and 3 appeared in the said suit and contested the same by filing written statement. In the said written statement, objection was raised by the defendants No.2 and 3 in respect of jurisdiction of the Court, as according to them the civil court has no jurisdiction to try and entertain the suit. Accordingly, preliminary issue came to be framed as to “Whether this court has jurisdiction to try the suit?” By order dated 16.04.2007, learned trial court (5th Joint Civil Judge, Junior Division, Nanded) recorded his finding on the point of jurisdiction in negative. However, instead of returning the plaint to respondent No.1, for presentation of the same in appropriate court, the trial court dismissed the suit and accordingly passed the decree. It further appears that this order came to be challenged by {3} respondent No.1 by filing Miscellaneous Civil Appeal before the District Court at Nanded. It also appears that the said Miscellaneous Civil Appeal No.75/2007 was heard by Ad Hoc District Judge, Nanded and vide order dated 03.05.2008 allowed the same and set aside the impugned order passed in RCS No. 106/2004. The said order is impugned in this petition. 4. At the outset, a technical point is raised by learned advocate appearing for petitioner that if the suit is dismissed and accordingly decree is drawn then the same is to be challenged by way of Regular Civil Appeal as provided under Order 41 of Civil Procedure Code and not by way of Miscellaneous Civil Appeal as provided under Order 43 of the Civil Procedure Code. There is force in this argument, as Order 43 speaks for appeal against order while Order 41 of Civil Procedure Code speaks about appeal against decree. 5. Considering the legal parameters, which contemplates procedure either to file Regular Appeal or to file Miscellaneous Civil Appeal, generally called as appeal against order, will depend upon the order of the trial court whether after passing of the order bill of cost was prepared and whether after passing the order decree was passed. Considering the fact that the learned trial court though recorded finding on the point of jurisdiction in negative, and as stated earlier, committed error instead of passing the order of return of plaint to respondent No.1, passed the order of dismissal {4} and thereafter the decree was prepared. In the premise, as provided under Order 41 only the Regular Civil Appeal would lie against the order passed by the learned trial court and not Miscellaneous Civil Appeal would lie against it, as provided under Order 43 of the CPC. Similarly, without considering what is the order passed by the trial court, the first appellate court also committed further error by entertaining the Miscellaneous Civil Appeal instituted by the respondents. Whereas, at the time of presentation of the same, if any objection might have been taken by the COC of the District Court, then this further judicial process could have been saved. Considering this aspect, the error committed by the trial court as well as by the first appellate court, the only option available is to allow the writ petition by quashing and setting aside the order passed by the first appellate court and to remand the matter back to the trial court for passing appropriate order in accordance with law. Therefore, order dated 3.5.2008 passed by the first appellate court is hereby quashed and set aside and the matter is remanded back to the trial court for passing appropriate order in accordance with law as provided under Order 7 of the CPC. 6. Rule is thus made absolute on the terms indicated above and the writ petition stands disposed of with no order as costs. The parties are directed to appear before the trial court on 17.07.2009. Advocates appearing for the parties to intimate this order to their respective clients. [A.V.POTDAR, J.] drp/wp5083-08 {5}