Patna High Court - Orders
Smt. Sonma Devi vs Smt. Urmila Devi & Anr on 4 February, 2009
Author: Ravi Ranjan
Bench: Ravi Ranjan
IN THE HIGH COURT OF JUDICATURE AT PATNA
C.R. No.2194 of 2008
SMT. SONMA DEVI, W/o Ram Briksh Rai, R/o
Village - Mahisour Gauspur, P.O. & P.S. Jandaha,
Distt. Vaishali, parental residence at Village Pachai Jagdish,
P.O. & P.S. Rajapakar, Distt. Vaishali ............Plaintiff - Petitoner
Versus
1. SMT. URMILA DEVI, W/o Hari Rai, R/o Vill. Manpura, P.O. & P.S.
Mahua, Distt. Vaishali ....................... (Defendant) and
2. Sri Raghu Rai, S/o Late Ritlal Rai, R/o Vill. Pachai Jagdish, P.O. & P.S.
Rajapakar, Distt. Vaishali ............(Defendant 2nd Party)......Opp. parties.
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3. 04.02.2009. Heard Mr Jitendra Kumar Verma, learned counsel for the petitioner.
The Office has raised points of maintainability in this matter. Its report is that the impugned order has been passed by the Civil Judge 1st (Sr. Division), Vaishali at Hajipur, under Order VII, Rule 11 of the Code of Civil Procedure (hereinafter referred to as `the Code‟) and the plaint itself has been rejected. The rejection of the plaint is a decree and is covered under sub-section (2) of Section 2 of the Code, thus, Civil Revision would not be maintainable rather appeal would lie against such order / decree.
Learned counsel for the petitioner contests the issue of maintainability and submits that the court below has erred in deciding this matter by rejecting the plaint under Order VII, Rule 11(d) of the Code on the wrong presumption that the property was mistakenly purchased in the name of the -2- Defendant No. 1 which, according to him, amounts to plea of benami, which is barred under Section 4 of the Benami Transaction Act, 1988. Whereas the case in fact is that the sister of the plaintiff has got her name fraudulently entered in the sale deed and, thus, there is no question of its being hit by any provision of Benami Transaction Act. Hence his contention is that this is one of the exceptional cases where this Court should exercise its revisional jurisdiction, as envisaged under Section 115 of the Code.
I am unable to accept this proposition for the reason that the statute itself is clear about the same. Section 115 of the Code empowers the Court to exercise its revisional power, relevant provisions thereunder are as follows:-
"115. Revision. - [(1)] The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears -
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material -3- irregularity, the High Court may make such order in the case as it thinks fit:
Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.
(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. (3) x x x x x x"
A plain reading of sub-section (2) of Section 115 of the Code reveals that the High Court cannot vary or reverse any decree or order, against which an appeal lies. Rejection of the plaint under Order VII, Rule 11(d) of the Code is a decree as per the provision under sub-section (2) of Section 2 of the Code, which is quoted hereunder:-
"2. Definitions.- ..............
(1) ...........
(2) - "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in -4- controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include -
(a) x x x x
(b) x x x x Explanation.- x x x x"
It would be relevant to examine a few decisions of different Courts in this regard.
The Supreme Court in Shamsher Singh v.
Rajinder Prashad & Ors., reported in AIR 1973 SC 2384, has held as under:-
"3. ........... In the present case the plaint was rejected under Order 7, Rule 11 of the C.P.C. Such an order amounts to a decree under Section 2 (2) and there is a right of appeal open to the plaintiff........... "
A Division Bench of this Court in Rameshwar Thakur & Ors. V. Smt. Bhagwati Devi & Ors., reported in AIR 1982 Patna 75, has held in this regard as under:-
`4. Order VII, Rule 11 of the Civil P.C. contemplates various circumstances under which a plaint has to be rejected by the Court and one of the circumstances is mentioned in clause (d) with which we are concerned in this case which reads as follows:--5-
"Where the suit appears from the statement in the plaint to be barred by any law."
This, at once, brings us to the definition of the term „decree‟, i.e. to the definition section, namely, Section 2 (2), which includes "rejection of the plaint and determination of any question within Section 144......" within its fold.‟ `4A. It is, therefore, obvious that an order rejecting the plaint has got to be treated as a decree and it will be subject to all those consequences applicable to a decree of the Civil Court, one of them being a right of appeal under S.
96. From the above provisions, it is quite apparent and obvious to us that the order under revision rejecting the plaint amounted to a decree within the meaning of Section 2 (2) of the Code and, therefore, was an appealable order......‟ Subsequently a Bench of this Court in Ajay Kumar & Ors. V. Chairman & Ors., reported in 1992 (2) PLJR 356, dealt with this issue and relying upon the decision of this Court rendered in Nand Kumar Sinha V. Rai Bahadur Pashupati Ghosh & Ors., reported in AIR 1941 Patna 385 and the Supreme Court in Shamsher Singh V. Rajinder Prashad & Ors. (Supra) as well as the Division Bench of this Court in Rameshwar Thakur & Ors. V. Smt. Bhagwati Devi & Ors. (Supra), has held that -6- order rejecting the plaint under Order VII, Rule 11 of the Code amounts to decree and no Civil Revision application lies before this Court.
Accordingly, the stamp report is accepted and I hold that the Civil Revision application is not maintainable.
However, I direct the Office to return the Civil Revision application, after retaining its true photocopy for the purpose of record of this Court, to the petitioner to enable the learned counsel to seek proper remedy.
This Civil Revision stands disposed of accordingly.
( Dr. Ravi Ranjan, J. ) dk