1. ' The question is whether this second appeal is maintainable. The plaint of suit filed by the respondent No, I against the appellant and others (Suit No, 1532/74), was rejected by the I Senior Civil Judge, Karachi on appltlation under Order VH rule 11, C. P. C. Filed by the appellant/defendant by his order dated 30-4-75. The respondent No, 1 therefore, filed first appeal against the said order to the Hi Addl. District Judge, Karachi, who allowed the appeal and remitted the suit to the trial Court for disposal according to law by his judgment dated 18-3-1976. It is against the said judgment that the present II appeal has been filed.
2. ' Mr. S. Y. Khawajs, learned Adovcate for the appellant, submitted that the impugned order of the Appellate Court, is an order of remand under Order XLI, rule 23. C. P. C. And is therefore, appealable under Order XLII1, rule 1(u), C. P. C. If this position is correct, then only a Miscellaneous Civil Appeal would lie and not a II Appeal. It may be noted that a II appeal cantt only lie under section 100, C. P.
3. C. From a decree passed on appeal and, I4 as Mr. Badarudduja rightly submitted, the order of the I Appellate Court Is not a decree.
4. ' In support of his submission that the impugned order is appealable. Mr. Khawja relied on I L R 1941 Nag.
629. This case appears to support him. But a contrary view has been taken by the Lahore High Court in AIR 1937 Lab. 380, following 6 C L J 214 that it was well settled tha an order of an appellate Court setting aside an order of the trial Court rejecting a plaint, and directing the trial Court to proceed with the trial of B the suit on its merits, is not an order under Order XLI, rule 43, C. P. C. And is not appealable under Order XLI H, rule 1(u), C. P. C. This view finds supports in AIR 1945 Mad. 430 In which the case-law has been discussed and the Nagpur case was not approved, I am inclined to agree with the reasoning of Horwill, J. In the Madras ease. In my opinion, the case does not lie under Order XLI, rule 23, C. P. C, because the rejection of a plaint is not a disposal of a suit upon a preliminary point.
5. ' For the foregoing reasons I am of the opinion that IInd Appeal Is not maintainable.
6. ' It is accordingly dismissed summarily.