Shiv Dayal, C.J.

The order of the trial Court rejecting the plaint amounted to a decree within the meaning of the definition of that term in section 2 of the Code of Civil Procedure. It was, therefore, appealable. The appellate Court set aside the order of the trial Court and remanded the suit for trial. The order of the appellate Court falls within the purview of Order 41, Rule 23, Civil Procedure Code inasmuch as the decision of the trial Court was on a preliminary point. Thus, the order of the appellate Court was appealable under Order 43, Rule 1, Civil Procedure Code. See Madhav v. Keshoo 1941 N L J 410 : A I R Nag. 304. This revision is, therefore, not competent. It will, however, be treated as a Miscellaneous appeal, as prayed by Shri Sapre in his application of today.

Jwalaprasad and four sons of Shyamlal brought this suit against Motilal and Shivkumar in respect of certain lands of which they were in possession as Pujaris (See paragraph 6 of the plaint). However, in the prayer clause they claimed a decree for declaration of ownership and injunction.

The trial Court found that no cause of action was disclosed in the plaint and accordingly rejected under Order 7, Rule 11, Civil Procedure Code. The plaintiffs appealed. The appellant Court allowed the appeal and directed remand of the case to the trial Court for trial of the suit.

Shivkumar, defendant, contends that the observations made by the appellate Court were inapt when it observed that an inquiry should have been made to establish prima facie that it is a public trust.

Shri Naokar, learned counsel for the plaintiffs, has made an application for amendment of the plaint on the basis of the averments already made in the plaint. What is sought is to amend the prayer Clause 12-A by substituting it as follows:--



Shri Naokars contention is that the suit is original for enforcement of the arrangement, which was arrived at between the parties on September 1, 1930, in respect of which the defendants are committing a breach.

Having perused the plaint and the application for amendment and also having heard Shri Sapre, learned counsel for the appellant, I am of the opinion that the application for amendment, should be allowed and the plaintiffs be permitted to amend the plaint as prayed in the aforesaid application, dated November 25, 1976, made in this Court. The plaintiffs have not come forward by way of amendment to introduce any new ideas. The necessary averments are already there in the plaint; the dispute is about right of worship, during the periods as agreed in the alleged agreement of September 1, 1930, (See paragraph 6 of the plaint in particular). The prayer clause was inartistically drawn. Applying the principle laid down by their Lordships of the Supreme Court in A.K. Gupta & Sons v. Damodar Vally Corporation : A I R 1967 S C 96, the application for amendment is allowed and leave is granted to the plaintiff to amend the plaint as prayed in the application, dated November 25, 1976, made in this Court.

In consequence of what I have said just now, the appeal is disposed of accordingly. The order of the trial Court as also of the appellate Court are set aside. Parties shall bear their own costs. The case shall now go back to the trial Court. The plaintiffs will incorporate the amendment in the plaint. The defendants may then file their amended written statement, if they choose to do so. The trial Court shall then proceed with the suit according to law.