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Delhi District Court

Hari Chand vs Vijay Rani on 7 August, 2023

             IN THE COURT OF MS SHAIL JAIN
          PRINCIPAL DISTRICT & SESSIONS JUDGE
          EAST: KARKARDOOMA COURTS, DELHI.


MCA NO. 35/2022


1.     Hari Chand
2.     Sant Ram @ Santu
3.     Pratap
       All S/o Sh. Kalu Ram
       R/o 3C, Street No. 2,
       Rani Garden, Shastri Nagar,
       Delhi-110031.                         ... Appellants


                      VERSUS

Vijay Rani
W/o Sh. Mahinder Pal
R/o 21, Street No. 3,
Rani Garden, Shastri Nagar,
Delhi-110031.                                ...Respondent

                                   Date of Institution : 01.12.2022
                                   Arguments Heard : 28.07.2023
                                    Date of Decision : 07.08.2023

JUDGMENT

1. Appellants have filed the instant appeal against impugned order dated 01.11.2022 passed by the Court of Ld. Senior Civil Judge, East District in CS No. 799/2021 titled as Vijay Rani vs. Hari Chand & Ors.

2. Facts leading to filing of the present appeal are that Vijay Rani, respondent herein, has filed a suit for Permanent Injunction against the defendants (appellants herein) in respect of property MCA No.35/2022 Hari Chand & Ors. vs. Vijay Rani Page 1 of 6 bearing plot no. E-27, measuring 110 sq. yards, falling in Khasra no. 38, situated in the Abadi of Rani Garden, Shastri Nagar, Delhi- 110031. Defendants/appellants neither appeared nor filed their written statements and were proceeded ex-parte and their opportunity to file written statements was also closed vide order dated 06.05.2022. Thereafter, defendants/appellants filed application in the ld. Trial Court, under Order VIII Rule 1 CPC r/w Section 151 CPC, for condonation of delay alongwith application under Order IX Rule 7 r/w Section 151 CPC for setting aside order dated 06.05.2022, which was dismissed vide impugned order dated 01.11.2022. Being aggrieved with the said order, the present appeal has been preferred with the prayer to quash/set aside the impugned order.

3. Appellants/defendants have preferred this appeal challenging the order dated 01.11.2022 whereby Ld. Trial Court has dismissed the application under Order VIII Rule 1 CPC filed by petitioner for condonation of delay in filing the written statement, therefore, written statement of the defendant was not taken on record and matter was adjourned for ex-parte evidence/arguments vide impugned order dated 01.11.2022.

4. Respondent was duly served on 18.01.2023.

5. Ld. Counsel for respondent has submitted that present appeal is not maintainable as per law, therefore, the parties were directed to argue on the point of maintainability of the appeal vide order dated 18.04.2023 by my Ld. Predecessor. Therefore, on 28.07.2023, arguments were advanced by the Ld. Counsels for parties on the point of maintainability of the present appeal.

6. Contention of the appellants is that appeal is maintainable, otherwise same can be converted into revision and title given to the petition will not restrict the relief, which can be granted to the appellants. In support of this contention, Ld. Counsel for appellants has relied upon three judgments, which are as under:

(1) R.P. Muniswamappa vs. Eramma, AIR 1968 Kant.8; (2) Jiwan Das vs. Narain Das etc., 1981, RLR 596; & (3) Om Prakash & Ors. vs. Dwarka Prasad & Anr., AIR 2005 MP 40.

7. On the other hand, Ld. Counsel for respondent has submitted that appeal is not maintainable in the eyes of law because there is no provision in entire Civil Procedure Code in which the present appeal can be filed against the order disposing an application under Order VIII Rule 1 CPC. It is also stated by Ld. Counsel for respondent that present Court has no jurisdiction to consider the present appeal as 'revision', as revisional jurisdiction lies with Hon'ble High Court, therefore, it is prayed that present appeal be dismissed.

8. I have considered the contentions of Ld. Counsels for the parties. I have also considered the relevant provisions of law, applicable to appeals and the judgments relied upon by appellants.

9. Order XLI CPC deals with the appeals from original decrees. Thus, it is clear that under Order XLI, the appeal can be preferred only against final orders passed by the Ld. Trial Courts. Various Rules under Order XLI CPC provide the procedure and grounds, which may be taken in appeal. Order XLII CPC deals with the appeals, which are to be filed against the decrees of Appellate Court MCA No.35/2022 Hari Chand & Ors. vs. Vijay Rani Page 3 of 6 and it is stated in Order XLII CPC that all the Rules provided under Order XLI shall also apply to the appeals from appellate decrees in Order XLII also. Order XLIII CPC deals with the appeals, which shall lie against the miscellaneous orders.

10. Since in the present case, the appeal has been preferred by the appellants herein against the order passed by Ld. Trial Court on an application and is not an appeal either against the original decree or against the decree of appellate decree, therefore, the provisions of Order XLI and Order XLII does not apply to the present appeal.

11. Order XLIII Rule 1 CPC is reproduced hereinunder:-

1. Appeal from orders.--An appeal shall lie from the following orders under the provisions of section 104, namely: --

(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court 1[except where the procedure specified in rule 10A of Order VII has been followed]; 2[* * * ]

(c) an order under rule 9 of order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte; 3[* * * * ]

(f) an order under rule 21 of Order XI;

4[* * * *]

(i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;

(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;

5[ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable;]

(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;

(l) an order under rule 10 of Order XXII giving or refusing to give leave;

6[* * * ]

(n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; 5[(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person;] 7[* * *]

(p) orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV;

(q) an order under rule 2, rule 3 or rule 6 of order (XXVIII);

(r) an order under rule 1, rule 2 1[rule 2A], rule 4 or rule 10 of Order XXXIX;

(s) an order under rule 1, or rule 4 of Order XL;

(t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal;

(u) an order under rule 23 1[or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;

2[* * *] (w) an order under rule 4 of Order XLVII granting an application for review."

12. By reading of Order XLIII Rule 1 CPC, it is clear that no appeal can be preferred against the Order disposing off an application under Order VIII Rule 1 CPC, as the same does not find mention in Order XLIII CPC. Thus, from the reading of provisions of Order XLI, XLII and XLIII CPC, it is clear that no miscellaneous Civil Appeal can be filed before this Court against order passed for disposing off an application under Order VIII Rule 1 CPC. Therefore, order passed by Ld. Trial Court cannot be challenged by way of appeal in the present Court.

13. It is also clear that this Court does not have jurisdiction to consider the revision against such orders.

14. All the three judgments, relied upon by Ld. Counsel for appellants deal with the conversion of either appeal into revision or revision into appeal. But since this Court has no jurisdiction to consider the appeal against the impugned order, as it does not lie and also has no jurisdiction to consider the revision against the order in question. Therefore, these judgments would not be applicable to the present facts, in hand.

15. In view of my above discussion, I am of the opinion that present appeal is not maintainable, hence, appeal is dismissed.

16. A copy of this order be sent to Ld. Trial Court for information.

File be consigned to record room.

                                      SHAIL         by SHAIL JAIN
                                                    Date:

Announced in the open court           JAIN          2023.08.07
                                                    16:56:22 +0530
today on 7 th August, 2023           (SHAIL JAIN)
                           Principal District & Sessions Judge,
                           East, Karkardooma Courts, Delhi




MCA No.35/2022
Hari Chand & Ors. vs. Vijay Rani                           Page 6 of 6