Patna High Court
Smt.Meera Sinha vs Smt.Girija Sinha & Anr on 16 October, 2008
Equivalent citations: AIR 2009 PATNA 19, 2009 (1) AIR JHAR R 973, 2009 A I H C (NOC) 219 (PAT), (2009) 2 CIVLJ 494, 2009 (2) ALJ (NOC) 283 (PAT.), 2009 (2) AKAR (NOC) 233 (PAT.), 2009 AIHC (NOC) 219 (PAT.)
Author: Chandramauli Kr. Prasad
Bench: Chandramauli Kumar Prasad, Subash Chandra Jha
CIVIL REVISION N0.167 OF 2004
(Against the order dated 16.12.2003 passed by Sub-Judge IVth, Patna, in T.S. No.
151 of 1997)
Meera Sinha, D/o Late Rameshwar Prasad Sinha, resident of village- Arara,
P.S.Hajipur, District- Vaishali, and Wife of Late Ram Narayan Roy, resident of
Village - Bachari,P.S.-Piro, District Bhojpur.
---------(Plaintiff, Petitioner)
Versus
(1) Girja Sinha, W/o Shri Ramdas Roy, resident of Village- Bachari, P.S.-Piro,
District- Bhojpur, At present residing at Qarter No. 3 Bihar Vidhyapith Sadakat
Ashram, P.S.- Patliputra, District-Patna.
(2) Krishnajeet Ranjan S/o Late Ram Narayan Roy, resident of Village-Bachari,
P.S.-Piro, District-Bhojpur, At present residing at Mohalla-Nehru Nagar, House No.
243, P.S.-Patliputra, District-Patna.
---------(Defendant, Opposite Parties)
For the Petitioner : Mr. V. Nath, Advocate
Mr. Ashok Kumar, Advocate
Mr. Ajay Kumar Singh, Advocate
Mr. W. Rahman, Advocate.
For Opp. Parties : Mr. Siddheshwari Pd. Sinha, Sr. Advocate
Mr. Kalyan Shankar, Advocate.
PRESENT
THE HON'BLE MR. JUSTICE CHANDRAMAULI KUMAR PRASAD
THE HON'BLE MR. JUSTICE SUBASH CHANDRA JHA
-------------------------
Prasad & Jha, JJ. Plaintiff/petitioner, aggrieved by the order
dated 16.12.2003 passed by the Subordinate Judge-
IVth, Patna, in Title Suit No. 151 of 1997, rejecting the
plaint under Order VII Rule 11 of the Code of Civil
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Procedure, has preferred this civil revision application
under Section 115 of the Code of Civil Procedure
(hereinafter referred to as the Code).
The Stamp Reporter has objected to the
maintainability of the civil revision application and
according to it rejection of plaint under Order VII Rule
11 of the Code of Civil Procedure is a decree within the
meaning of Section 2 (ii) of the Code and as such
appeal would lie.
Petitioner contested the stamp report. By order
dated 11.10.2004 without adjudicating the question of
maintainability of the civil revision application the civil
revision application was admitted for hearing.
Ultimately, matter came up for consideration before the
learned Single Judge on 18.04.2006. In its opinion there
is apparent conflict between the Division Bench
judgment of this Court in the case of Rameshwar
Thakur and Ors. Vs. Bhagwati Devi and Ors. (1982
PLJR 167) and the Division Bench judgment of this
Court in the case of Ravneshwar Thakur and Ors. Vs.
Neeraj Kumar Thakur and Ors., (1996 (1) PLJR 494).
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Accordingly, the learned Single Judge referred the
matter to be adjudicated by a larger Bench. Under the
orders of Hon‟ble the Chief Justice this application has
come for consideration before us.
Short facts giving rise to the present
application are that the plaintiff filed the suit for
declaration of title and possession of the suit land and
also sought declaration that the Ladavi deed dated
15.11.1999 executed by defendant no. 2 in favour of
defendant no. 1 is void, fraudulent, illegal and
inoperative. Plaintiff also sought ad interim injunction
against defendant no. 1 from interfering with his
possession. Defendant No. 1 appeared in the suit and
filed an application under Order VII Rule 11 of the
Code of Civil Procedure (hereinafter referred to as the
Code) for rejection of the plaint. Subordinate Judge-IV,
Patna, by the impugned order rejected the plaint inter
alia holding that the document was fraudulently and
collusively created and the registration of the document
at Calcutta is in teeth of law. It also held that the plaint
has been presented on insufficient stamp paper and it is
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also hit by the law of limitation.
It is common ground that after rejection of the
plaint decree has been drawn. Mr. V. Nath appears for
the petitioner. In fairness to him, he submits that in view
of Section 2 (ii) of the Code, rejection of plaint under
Order VII Rule 11 of the Code is a decree but the trial
court has disposed of the case on a preliminary point
without deciding the dispute on merit, the rejection of
the plaint will not amount to decree as there was no
determination of the rights of the parties. In support of
his submission he has placed reliance on a Division
Bench Judgment of this Court in the case of
Ravneshwar Thakur and Ors., (supra), and our attention
has been drawn to paragraph 15 of the judgment which
reads as follows:
"In the above premises I would hold
that rejection of memorandum of
appeal on the ground of limitation is
not appealable in all the cases. Where
the appeal is against a decision of the
trial court on merits, that is, where the
trial court has decided the dispute on
merit or, in other words, „determined
the rights of the parties‟, such rejection
could amount to „decree‟ and be,
therefore, appealable. Where, however,
the trial court has disposed of the case
on a preliminary point or on technical
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ground without deciding the dispute on
merit, the „in limine‟ rejection of the
memorandum will not amount to
decree as there was no „determination
of the rights of the parties‟ by the trial
court and the principle laid down in
Sheodan Singh‟s case will not be
applicable. In such cases revision will
be maintainable. The question is
answered accordingly."
Reliance has also been placed on a decision of
the Supreme Court in the case of Ratan Singh Vs. Vijay
Singh & Ors. reported in (2001) 1 Supreme Court
Cases, 469, and we have been invited to Paragraph 11
of the said judgment, it reads as follows:
"In order that a decision of a court
should become a decree there must be
adjudication in a suit and such
adjudication must have determined the
rights of the parties with regard to all
or any of the matters in controversy in
the suit and such determination must be
of a conclusive nature. If those
parameters are to be applied then
rejection of application for condonation
of delay will not amount to a decree.
Consequently, dismissal of an appeal
as time-barred is also not a decree. We
are aware that some decisions of the
High Courts have taken the view that
even rejecting an appeal on the ground
that it was presented out of time is a
decree within the meaning of the said
definition. We are also aware of the
contrary decisions rendered by High
Courts on the same point. Dealing with
some of those decisions a Full Bench
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of the Calcutta High Court [S.P. Mitra,
CJ., Sabyasachi Mukherjee, J. (as he
then was) and S.K. Dutta, J.] has held
in Mamuda Khateen Vs. Beniyan Bibi
that "if the application under Section 5
of the Limitation Act was rejected the
resultant order cannot be a decree and
the order rejecting the memorandum of
appeal is merely an incidental order".
The reasoning of the Full Bench was
that when an appeal is barred by
Limitation the appeal cannot be
admitted at all until the application
under Section 5 of the Limitation Act
is allowed and until then the appeal
petition, even if filed, will remain in
limbo. If the application is dismissed
the appeal petition becomes otiose. The
order rejecting the memorandum of
appeal in such circumstances is merely
an incidental order. We have no doubt
that the decisions rendered by the High
Courts holding the contrary view do
not lay down the correct principle of
law."
To drive home the point, Mr. Nath has also
placed reliance on a decision of the Supreme Court in
case of Prem Bakshi and Ors. Vs. Dharam Dev and
Ors., reported in AIR 2002 Supreme Court, 559, and
our attention has been drawn to the following passage
from Paragraph 5 of the judgment which reads as
follows:
"By way of illustration we may say that
if a trial Court holds by an interlocutory
order that it has no jurisdiction to
proceed with the case or that suit is
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barred by limitation, it would amount to
finally deciding the case and such order
would be revisable."
Reliance has also been placed on a judgment
of the Supreme Court in the case of Vidyodaya Trust
and Ors. Vs. Mohan Prasad and Ors., reported in
(2006) 7 Supreme Court Cases 452, and reference has
been made to Paragraph 11 of the judgment, which
reads as follows:
"Judged in the aforesaid background
the view of the learned Single Judge
that the civil revision was not
maintainable is clearly indefensible.
Learned counsel for the respondent has
fairly conceded to this position. If it is
held that the suit in terms of Section 92
CPC is not maintainable, that would
have the result of final disposal of the
suit. However, the learned counsel
made an attempt to justify the order by
stating that the matter was also dealt
with on merits. That would not
improve the situation. The civil
revision was clearly maintainable.
Therefore, we allow the appeal so far
as it relates to Civil Revision Petition
No. 1260 of 2003 disposed of by the
judgment dated 5.2.2004 by the High
Court. The said order is set aside."
Mr. Siddheshwari Prasad Sinha, Senior
Advocate appearing on behalf of the opposite party,
however, contends that rejection of the plaint amounts
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to decree and once it is held so, an appeal would lie.
Neither on principle nor precedents, we are
inclined to accept the submission of Mr. Nath. It is
common ground that the plaint has been rejected
under Order VII Rule 11 of the Code of Civil
Procedure. Section 2 (ii) of the Code defines „decree‟,
it reads as follows:
Definitions - In this Act, unless there is
anything repugnant in the subject or
context-
x x x x x x x x x x
(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
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.
Explanation - A decree is preliminary
when further proceedings have to be taken
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before the suit can be completely disposed
of. It is final when such adjudication
completely diposes of the suit. It may be
partly preliminary and partly final:
x x x x x x x x
It is an inclusive definition and the rejection
of the plaint by legal fiction has been deemed a
decree. Once it is held that the rejection of the plaint
is a decree, the natural corollary of the same shall be
that an appeal would lie. In view of the language of
Section 2 (2) of the Code, order rejecting the plaint
has got to be treated as decree. Thus on principles we
are of the opinion that rejection of a plaint, being a
decree, there is no escape from the conclusion that an
appeal would lie.
Now we proceed to consider the precedent
on this question. A Division Bench of this Court in
the case of Rameshwar Thakur and Ors.,(supra),
has held as follows:
"Order VII, Rule 11 of the Code of Civil
Procedure 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:
"Where the suit appears from
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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 namely, section 2 (2), which
include "rejection of the plaint and
determination of any question within
section 144 ......" within its fold.
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 these consequences applicable to a
decree of the Civil Court, one of them
being a right of appeal under Section 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
and inasmuch as the valuation of the suit
is less than rupees ten thousand, an
appeal against the order lies before the
District Court."
(underlining ours)
The Supreme Court had the occasion to
consider this question in the case of Shamsher
Singh vs. Rajinder Prashad and Ors., reported in
AIR 1973 Supreme Court 2384, and has
categorically held that an order rejecting a plaint is
appealable as a decree, the relevant portion of which
reads as follows:
"In the present case the plaint was
rejected under Order VII, Rule 11 of
the CPC. Such an order amounts to a
decree under Section 2 (2) and there is
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right of appeal open to the plaintiff.
Furthermore, in a case in which this
court has granted special leave the
question whether an appeal lies or not
does not arise. Even otherwise a
second appeal would lie under S. 100
of the CPC on the ground that the
decision of the 1st Appellate Court on
the interpretation of Section 7(iv) (e)
is a question of law. There is thus no
merit in the preliminary objection."
(Underlining ours)
A learned Single Judge of this Court in the
case of Ajay Kumar and Shia Devi and another vs.
Chairman and others reported in 1992 (2) PLJR 356,
has also held that order rejecting the plaint under
order VII, Rule 11 of the Code is nothing but a
decree and no civil revision application would lie
before this Court. While coming to this conclusion,
the learned Single Judge had relied on a decision of
the Supreme Court in the case of Shamsher Singh
(supra), as also the Division Bench judgment of this
Court in the case of Rameshwar Thakur (supra),
relevant portion of the judgment of this Court in the
aforesaid case reads a follows:
"However, I am of the view that the
impugned order rejecting the plaint
under Order VII Rule 11 of the Code
amounts to a decree and no Civil
Revision application lies before this
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Court. Such is the ratio decidendi of
this Court in his decision reported in
AIR 1941 Patna 385 and AIR 1982
Patna 75 and even of Supreme Court
reported in AIR 1973 Supreme Court
2384 (Paragraph 4). Accordingly, I
accept the stamp report and hold that
these Civil Revision applications are
not maintainable."
These precedents and authorities also lend
support to the proportion that an order rejecting the
plaint has got to be treated as decree and it shall be
subject to all the consequences applicable to a
decree, including the right to appeal. Relying on
precedents we are inclined to take a view that
rejection of the plaint amounts to a decree and no
civil revision would lie against such order and the
remedy is to file an appeal.
Now, referring to the decisions relied on by
Mr. Nath, same are clearly distinguishable. In the
case of Ravneshwar Thakur (supra), the Division
Bench was considering as to whether an order
dismissing an appeal on account of limitation being
time barred would be appealable or revisable. In the
background of the facts thereof, the Division Bench
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held that rejection of the memorandum of appeal
without deciding the dispute on merit will not
amount to decree, which is not the case here. For the
same reasons, the decision of the Supreme Court in
the case of Ratan Singh (supra), is also
distinguishable. In the case of Prem Bakshi (supra),
the Supreme Court was not considering as to whether
the rejection of the plaint under Order VII Rule 11 of
the Code would be a decree or not but the question
was as to whether the decision on the point of
jurisdiction to proceed with the case would amount
to finally deciding the case or not. In this case it has
been held that same would amount to finally
deciding the case and hence order would be
revisable. The decision of the Supreme Court in this
case thus has to be understood in the context it was
rendered and from that it cannot be deciphered that
the civil revision would lie against an order rejecting
the plaint.
Reliance of the petitioner in the case of
Vidyodya Trust (supra) is also mis-conceived. In this
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case the High Court dismissed the civil revision
application as not maintainable as in its opinion the
order impugned was an interlocutory order. This
would be evident from Paragraph 4 of the judgment
which reads as follows:
"Questioning the correctness of the
order, a petition for revision in terms of
Section 115 CPC was filed. The High
Court dismissed the civil revision
petition on the ground that the same
was not maintainable. Though the High
Court made reference to some factual
aspects, it ultimately came to hold that
the revision petition was not
maintainable as order dated 11.4.2003
was an interlocutory one. Thereafter,
the appellants filed writ petition before
the High Court praying, inter alia, for
writ, direction or order, questioning the
order dated 2003. By order dated
20.8.2004the High Court dismissed the writ petition holding that the view taken in the civil revision apparently was not correct, as by no stretch of imagination can it be held that the High Court had no jurisdiction. It accepted the stand of the respondents herein that since there was discussion on merits, though the petition was not held to be maintainable, subsequent proceedings initiated under Article 227 of the Constitution of India."
(Underlining ours) In the background of the above, the Supreme Court held that the conclusion of the High Court was
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indefensible. Here we are not concerned with this question at all. Question before us is not as to whether the rejection of the plaint is an interlocutory order or not. Thus none of the decisions relied on by the petitioner support its contention. We have not found any conflict between the decision of this Court in the case of Rameshwar Thakur (supra) and Ravneshwar Thakur (supra).
We are of the considered opinion that an order rejecting the plaint is nothing but a decree and as such shall not be revisable under Section 115 of the Code but shall be appealable under Section 96 thereof.
Petitioner, if so desires, may seek remedy of appeal and pray for condonation of delay on the ground that she was persuing the civil revision application on a bonafide wrong legal advice. The very fact that the case has been referred on the question of maintainability before the Division Bench, one can assume that it is a bonafide application. In case the petitioner files an appeal and
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prays for condonation of delay in filing the appeal the appellate Court shall bear that in mind.
In the result, the Civil Revision application is dismissed as not maintainable, but without any order as to cost.
(Chandramauli Kr. Prasad, J.) (Subash Chandra Jha, J.) Patna High Court, the 16th day of Oct.
2008,AFR Sanjeet