Andhra HC (Pre-Telangana)
Ragam Yellaiah And Ors. vs Chintha Shankaraiah on 29 January, 2003
Equivalent citations: 2003(5)ALT403
JUDGMENT P.S. Narayana, J.
1. The Civil Miscellaneous Appeal is filed as against the order passed in C.F.R.No.63 of 2002 on the file of the Court of the Senior Civil Judge, Siddipet, dated 3-4-2002. The said order is made rejecting the plaint filed, under Order VII Rule 11(d) of the Code of Civil Procedure, hereinafter, in short, referred to as 'Code' for the purpose of convenience.
2. Smt.Pramada, counsel representing respondent had raised a preliminary objection relating to the maintainability of the C.M.A. on the ground that the rejection of plaint is a decree within the meaning of Section 2(2) of the Code and hence a regular appeal alone has to be filed under Order 41 Rule 1 of the Code read with Section 96 of the Code. The learned counsel had placed strong reliance on SHAMSHER SINGH vs. RAJINDER PRASHAD1, VADITHO ANANTHARAO NAIK vs. BHOOMISETTY RAJAIAH2 and KONA RAMU vs. THE PAYAKARAOPETA PRIMARY AGRICULTURAL CO-OPERATIVE CREDIT SOCIETY LIMITED3.Apart from the maintainability of the C.M.A. as against such an order, the learned counsel also had thoroughly taken me through the impugned order and had submitted that in view of Article 58 of the Limitation Act, 1963, the suit should have been instituted within three years and so it is clearly barred by time and hence the impugned order is perfectly legal and valid. The learned counsel also had distinguished the decisions cited and referred to in the impugned order on the ground that on facts they are distinguishable. The learned counsel also had drawn my attention to Section 49 of the Andhra Pradesh Court Fee and Suit Valuation Act, 1956.
3. Per contra, Sri T.Veerabhadrayya, learned counsel representing the appellants with all vehemence had contended that the rejection of the plaint under Order 7 Rule 11(d) of the Code is only an order and though it is included in the definition of decree, at best it can be treated as a deemed decree and hence a C.M.A. alone is maintainable. The learned counsel further elaborating his submissions had drawn my attention to the provisions of Order 21 Rule 58 of the Code and also a decision of the Division Bench of this Court in B.NOOKARAJU vs. M.S.N. CHARITIES4 and contended that in the light of the binding decision of the Division Bench, the Civil Miscellaneous Appeal filed as against the impugned order is perfectly maintainable. Further, touching the merits of the matter the learned counsel had taken me through the impugned order and had contended that several of the aspects which are not necessary to be discussed at the time of entertaining the suit i.e., at the time of institution of the suit, had been discussed and these are all aspects which are to be gone into and decided on the respective pleadings of the parties and after the parties letting in evidence on both sides. The learned counsel further submitted that unless on the face of the allegations in the plaint the suit is barred, the plaint cannot be rejected by invoking Order 7 Rule 11(d) of the Code. At any rate, the question of limitation always necessarily need not be a pure question of law, but it may be a mixed question of fact and law, and hence in this view of the matter, the rejection of the plaint at the threshold dealing with Articles 58 and 65 of the Limitation Act, 1963, cannot be said to be legal or justified. The learned counsel also had drawn my attention to STATE OF MAHARASHTRA vs. PRAVIN JETHALAL KAMDAR5.
4. Heard both the learned counsel.
5. The appellants as plaintiffs instituted the suit for delivery of vacant and peaceful possession of the plaint schedule property, for a decree for rectification of revenue records in respect of the suit schedule land by deleting the name of the defendant from pattedar column as well as possessor column against the suit schedule property and entering the name of the plaintiffs as pattadars and possessors of the plaint schedule property, for a perpetual injunction restraining the defendant from alienating the plaint schedule property and for such other suitable reliefs.
6. Order 7 Rule 11(d) of the Code specifies that the plaint shall be rejected where the suit appears on the statement in the plaint to be barred by any law. It is needless to say that at this stage the allegations in the plaint alone may have to be looked into for the purpose of either entertaining the suit or rejecting the suit.
7. The main controversy between the parties in the present C.M.A. is two fold. The first question relating to the maintainability of the C.M.A., the second question is the applicability of Article 58 or Article 65 of the Limitation Act and the rejection of the plaint on the ground of limitation.
8. QUESTION NO.1:
On the question of maintainability of the C.M.A., strong reliance was placed on the decision of the Division Bench of this Court in B.NOOKARAJU case (4 supra). Section 2(2) of the Code defines Decree as follows:
"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 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) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default."
9. The words "shall be deemed to include the rejection of a plaint" assume importance in the present context. No doubt in the inclusive definition of decree it is deemed that the rejection of a plaint also is included. A Division Bench of th is Court in B.NOOKARAJU (4 supra) while dealing with the maintainability of a C. M.A. as against an order, passed on a claim of attachment of property in executi on under Order 21 Rule 58(3) of the Code, it was held that a C.M.A. is maintaina ble inasmuch as the status of such an order is only a deemed decree and not a de cree. The language employed under Section 2(2) of the Code also is deemed to in clude the rejection of a plaint. Hence the principle laid down by the Division Bench in B.NOOKARAJU case (4 supra) is squarely applicable and can be extended in the present context also. But, however the controversy does not stop there.Strong reliance was placed on SHAMSHER SINGH case (1 supra), wherein the Apex Court held that an order of rejecting a complaint under Order 7 Rule 11 of the Civil P.C. for non-payment of additional Court fee demanded is appealable as a decree and when the order is reversed in appeal by the High Court, a Second Appeal would lie under Section 100 C.P.C. on the ground that the decision of the first appellate Court on the interpretation of Section 7(iv)(c) is a question of law.I had carefully gone through the decision of the Apex Court and that in para 3 the discussion was relating to a preliminary objection raised based on the observations of the Apex Court in RATHNAVARMA RAJA vs. SMT.VIMLA6. The Apex Court also had referred to VASU vs. CHAKKI MANI7 and the question that had been dealt with was relating to the maintainability of the revision as against the adequacy of payment of Court fee.No doubt there is some discussion relating to rejection of plaint and right of an appeal open to the plaintiff. Though it was observed by the Apex Court that a Second Appeal would lie under Section 100 of C.P.C. on the ground that the decision of the first appellate Court on interpretation of Section 7(iv)(c) is a question of law, and rejected preliminary objection, the question whether the rejection of a plaint can be construed to be a decree or a deemed decree for the purpose of maintainability of a regular appeal or a C.M.A. had not been specifically decided. Hence the decision of the Apex Court is distinguishable in view of the facts referred to supra. It is no doubt true that under Section 49 of the A.P. Court Fee and Suit Valuation Act, 1956, dealing with appeals, the fee payable in an appeal shall be the same as the fee that would be payable in the Court of first instance on the subject matter of the appeal. This provision is in relation to the payment of Court fee.
10. In KONA RAMU case (3 supra) it was held that the rejection of a plaint will amount to a decree and as against such an order, appeal lies but not revision. The learned Judge at para 9 had observed that an order of rejection of a plaint under Order 7 Rule 11(d) of the code will amount to a decree, against which only an appeal lies before the concerned Forum and not under Section 115 of the Code. The same view was expressed in VADITHO ANANTHARAO NAIK case (2 supra).
11. There cannot be any dispute or controversy that a revision against an order of rejection of plaint is not maintainable, but the question is whether it should be construed to be a deemed decree and a C.M.A. is maintainable or whether such order should be equated with a decree so as to maintain a regular appeal only under Order 41 Rule 1 read with Section 96 of the Code. It is also pertinent to examine the definition of the decree with care and caution. The commencing portion of the definition itself specifies "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 controversy in the suit and may be either preliminary or final." Hence from the definition itself it is clear that in the later portion while dealing with the inclusive orders, the rejection of the plaint also had been included, and hence I have no hesitation in holding that an order of rejection of plaint under Order 7 Rule 11(d) of the Code is only a deemed decree and hence a C.M.A. is maintainable.
12. QUESTION NO.2:
The next aspect to be decided is whether the impugned order of rejection of plaint under Order 7 Rule 11(d) of the Code is sustainable in the facts and circumstances of the case. A copy of the plaint is produced before this Court and I had gone through paras 4 to 12 of the said plaint. No doubt at para 6 of the plaint it was pleaded that the defendant, who obtained the registered sale deed on 28-12-1994 fraudulently and on misrepresentation, used the same to get his name mutated in the revenue records and got entries made in pahanies and also obtained pattadar pass book. No doubt several other factual allegations were made in detail in the plaint, which may not be essential to be dealt with for the purpose of deciding the matter. I had carefully scrutinized the impugned order and virtually the learned Judge had decided the suit itself while rejecting the plaint. It may be appropriate to have a look at Order 7 Rule 11(d) of the Code, which reads as hereunder:
"Where the suit appears from the statement in the plaint to be barred by any law."
13. On an over all reading of the allegations in the plaint, on the face of the allegations it cannot be said that it is barred by any law. No doubt elaborate contentions had been advanced by the counsel representing the respondent-defendant that it is a question of limitation, which is a pure question of law and it is Article 58 of the Limitation Act, 1963, which is applicable, and since the appellants-plaintiffs had not sought for cancellation within three years from the date of receiving the plaint in O.S.No.93 of 1996, i.e., on 23-9-1996, by filing the suit on or before 23-9-1999, the suit is clearly barred by limitation. This is the reason on which the plaint was rejected as can be seen from para 12 of the impugned order. The reasoning is that the appellant-plaintiff got knowledge that registered instrument dated 23-12-1994 is a sale deed when they received plaint copy in O.S.No.93 of 1996 on 23-9-1996 and they filed written statement on 2-3-1998 and since the suit was instituted beyond the period of three years, the suit is barred by limitation. It was also stated that the said instrument at the best is voidable and not void and hence on the question of limitation the plaint is liable to be rejected and accordingly the same was rejected.
14. At the outset I may state that the question of limitation necessarily always is not a pure question of law, but it is a mixed question of fact and law. May be that there may be certain circumstances where on the face of the allegations in the plaint a suit may be clearly barred by limitation. Here the dispute appears to be whether Article 58 of the Limitation Act or Article 65 of the Limitation Act, 1963 is applicable to the facts and circumstances of the case. Reliance also was placed on STATE OF MAHARASHTRA CASE (5 SUPRA). No doubt on facts this decision is distinguishable because it was a case where the documents in question were treated to be a nullity. But in the present case no doubt a ground that the document is voidable had been raised. Be that as it may, all the factual disputes which may have to be gone into on both parties letting in evidence cannot be decided at the threshold unless on the allegations made in the plaint itself, the Court can arrive at a conclusion that the suit is clearly barred by any law, be that a question of limitation or any other question. When several other factual aspects are also to be gone into while deciding a question of law involved incidentally, the rejection of the plaint at the threshold cannot be sustained. In the light of the allegations made in the plaint, I am of the considered opinion that these are all aspects which are to be gone into at the time of regular trial after both parties adducing evidence. I do not want to express any other opinion relating to the other merits and demerits of the matter which may have to be decided at the appropriate stage. Hence, in view of the same, I am of the opinion that the appellants are bound to succeed.The impugned order dated 3-4-2002 is hereby set aside and the learned Senior Civil Judge, Siddipet is hereby directed to number the suit and proceed with the matter in accordance with law. In view of the facts and circumstances of the case, this Court makes no order as to costs.