Calcutta High Court (Appellete Side)
Employees' State Insurance ... vs Ward Memorial Church School & Anr on 11 December, 2017
Author: Harish Tandon
Bench: Harish Tandon
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In The High Court At Calcutta
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Harish Tandon.
C.O. 3904 of 2017
The Deputy Director,
Employees' State Insurance Corporation.
v.
Ward Memorial Church School & Anr.
For the Petitioner : Mr. Shiv Chandra Prasad.
For the Opposite Party. : Mr. Sushanta Kumar Kundu,
Mr. Saptarshi Kumar Kundu.
Heard on : December 11, 2017.
Judgment on : December 11, 2017.
The Court: - An interesting point is raised in the instant matter,
whether an aggrieved person has a remedy to file Second Appeal or an
application under Article 227 of the Constitution of India is competent
against an order disposing of an application for injunction filed in
connection with a proceeding under Section 115 of the Code of Civil
Procedure.
As a prelude, a suit was filed for claiming reliefs before the Civil
Court and such reliefs according to the defendant can only be granted
by a special forum constituted under the Employees' State Insurance
Act, 1948. The defendant took out an application for rejection of the
plaint, as the reliefs claimed is barred by law.
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The Trial Court allowed the said application and a regular First
Appeal under Section 96 of the Code was filed by the petitioner
before the Court of
Appeal below. The Appellate Court, however, was not agreeing with the
findings recorded in the impugned judgement and order and set aside
the same with categorical observations that the suit is maintainable
and the point of maintainability is set at rest. The said order of the
Court of Appeal below is challenged in an application under Article 227
of the Constitution before this Court.
My attention is drawn to an order of the Division Bench of this
Court in case of Suraj Mull Gouti vs. Sumati Gouti & Ors. reported in
(2005) 2 WBLR (Cal) 296 in support of the contention that the remedy
available to an aggrieved person against such order is by way of filing a
revisional application before the High Court irrespective of the fact that
such order is passed by the Appellate Court under Section 96 of the
Code.
An inspiration appears to have been drawn from the observations
recorded in the said Report, which are set out as below:
"7. It is now settled law that power of revision under Section
115 of the Code of Civil Procedure is in reality exercised by a
superior Court as part of general appellate jurisdiction. (See
Shankar Ramchandra Abhyankar v. Kirishnaji Dattatraya Bapat,
reported in AIR 1970 SC 1). Therefore, the same principle will
apply to a proceeding under Section 115A of the Code.
8. It is true that an affirmative finding on a question of
maintainability of a suit does not amount to decree within the
meaning of Section 2 (2) of the Code and as such, the defendant
preferred a revisional application before the learned District Judge
but the said Revisional Court having reversed such finding and
come to the conclusion that the suit is not maintainable, such order
amounts to decree. The order impugned herein, therefore, should
be held to be a decree passed by the first appellate Court below,
notwithstanding the fact that such finding was arrived at not in an
appeal but in exercise of power of revision.
9. We, therefore, find substance in the contention that of Mr.
Roy Chowdhury that this appeal should be classified as a regular
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second appeal. Since, we have determination to hear second
appeal only at the stage of hearing Order 41 Rule 11 of the Code
and in this case, this appeal has already been admitted by a
different Division Bench under Order 41 Rule 11 of the Code after
keeping the question of classification of appeal open for final
decision, we cannot hear out this second appeal on merit as
contested one at the final hearing stage."
The Division Bench was confronted with the identical question as
the challenge was made to an order passed by the learned Additional
District Judge, 13th Court, Alipore in First Miscellaneous Appeal. In the
said case as well the plea was taken before the Trial Court in the suit
that the suit is not maintainable and the Court of original jurisdiction
fixed the date for hearing on the aforesaid point and ultimately held
that the suit is maintainable.
A revisional application was filed under Section 115A of the Code
before the learned District Judge, who came to an ultimate conclusion
that the suit is not maintainable; as a consequence whereof the suit
was dismissed.
It was argued before the Division Bench that the nature of the
order is such that it neither comes within the purview of Section 104
nor within the ambit of Order XLIII Rule 1 of the Code of Civil
Procedure and, therefore, the First Miscellaneous Appeal filed before
the High Court is not maintainable. The Division Bench in the
backdrop of the aforesaid factual matrix held, which would discerns
from the findings recorded in paragraph 8 as quoted hereinabove, that
both the revisional jurisdiction as well as the appellate jurisdiction are
vested upon the District Judge as a part of an appellate jurisdiction
and it is immaterial whether the order is passed in a Miscellaneous
Appeal or in a revisional application, as the nature of the order would
be the sole factor for remedial measures.
The Division Bench in unequivocal terms held that if the order
partakes such characteristics amounting to an order within the
periphery of Section 104 or Order XLII Rule 1 of the Code, it is
immaterial under what provision such order is passed and the sole
determining factor would be its nature to ascertain the further remedy
available to the aggrieved person.
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The another Division Bench in case of Amal Chandra Mondal vs.
Anita Biswas & Anr. reported in (2006) 2 CLJ 180, more or less at the
same time was confronted with the question whether the remedy by
way of filing a revisional application or an appeal is available to the
aggrieved person. In the said given case an add interim order of
injunction was passed by the Trial Court restraining the defendants
therein from interfering with the present position of the property and
not to disturb the status quo as regards possession, use and nature
and character of the suit property till the disposal of the injunction
applilcation. An application was filed by the defendant therein alleging
that the suit is not maintainable and the Trial Court held that the suit
is otherwise maintainable.
The order was challenged under Section 115 A of the Code before
the District Judge, who set aside the said order and that is how an
application under Article 227 of the Constitution came to be filed by
the aggrieved plaintiff before the High Court.
The revisional application was rejected by the Single Bench of
this Court holding that the said order is an appealable one. It was
observed by the Single Bench that when the suit itself has been
dismissed, the lis comes to an end and, therefore, must be considered
as final determination of the rights of the parties and amounts to a
decree. Since the revisional application was dismissed on such score, a
Second Appeal was filed by the aggrieved person, which ultimately
came up before the Division Bench.
The argument was advanced on behalf of the appellant therein
that in view of the categorical observations of the Single Bench, the
appeal is otherwise maintainable, whereas the respondent says that no
appeal lies against the said order under Section 100 of the Code, as the impugned order does not emanate from the Court exercising an appellate jurisdiction; more precisely in an appeal filed under Section 96 of the Code, as the order came to be passed under Section 115A of the Code.
The Division Bench noticed various judgements of this Court rendered at an earlier point of time, but obviously did not have an occasion to consider the judgement of another Division Bench rendered in case of Suraj Mull Gouti (supra). The Division Bench in the said 5 Report held that if an issue relating to jurisdiction or maintainability of the suit is answered in favour of the defendant, then in such event the suit has to be dismissed and nothing remains in that suit to be decided and, therefore, such decision partakes the character of a decree.
It is further held that an adjudication under Order VII Rule 11 (d) of the Code of Civil Procedure, which ends the lis, also assumes the character of a decree within the meaning of a decree assigned under Section 2(2) of the Code. In that given case the revisional Court held that the suit is not maintainable, over which the Division Bench came to a positive finding that it amounts to a deemed decree and, therefore, an appeal lies before the higher forum.
However, this Court notices the categorization of an appeal before this Court. According to the Division Bench since the Second Appeal does not emanate from the decree of the Appellate Court below exercising jurisdiction under Section 96 of the Code, but partakes the characteristic of a deemed decree; it should be categorized as Second Miscellaneous Appeal and be placed before the appropriate Bench for admission under Order XLI Rule 11 of the Code.
From the holistic reading of both the judgements, this Court feels that they are ad idem on one proposition of law that the nature of an order, would be a deciding factor for further remedy to be exhausted by the aggrieved person and it would be totally irrelevant whether such order has been passed in a revisional application or in an appeal under Section 96 or in an appeal provided under Section 104 as well as Order XLIII of the Code.
There cannot be any doubt nor this Court has any doubt on the above enunciation of law, yet this Court feels that the other provisions, which assumes importance and relevance to an issue, which is slightly different from the cases before the Division Bench, requires a little drift therefrom.
Section 2 (2) of the Code defines the 'decree' to mean the formal expression of an adjudication, which so far as regards the Court expressing it, conclusively determining the rights of the parties with regard to all or any of the matter 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, 6 but any adjudication from which an appeal lies as an appeal from an order, or any order of dismissal for default.
It is axiomatic to say that the rejection of a plaint under Order VII Rule 11 of the Code is a deemed decree and it would not be wrong to say that the remedy against such an order lies by way of filing an appeal. The order rejecting the plaint brings the dismissal of the suit, as no lis can be said to have survived and, therefore, the appeal under Section 96 of the Code is the proper remedy. The order rejecting the plaint may not be conceivable to be treated as an order under Section 104 of the Code because of the language employed therein. The deemed decree does not come within the ambit and purview of Section 104, which would be evident from the expression "save as otherwise expressly provided in the body of this Code or by any law for the time being in force". It further imbibes within itself any order made under the Rules from which an appeal is expressly provided by Rules.
It is undisputed that the order rejecting the plaint is passed by the Court taking aid of Order VII Rule 11 of the Code and, therefore, it is an order made under the rules as appearing under Section 104. Whether an appeal has been provided in the rules is the other factor, one has to ascertain the nature and the remedy available to an aggrieved person.
Order XLIII Rule 1 of the Code neither contemplates nor includes an order passed by the Court exercising powers under Order VII Rule 11 of the Code. The obvious reason, one can discern, is the character of such order to be treated as a deemed decree and the remedy, which is available against the decree, is to be exhausted against the deemed decree.
I am not oblivion of the other lines of the decisions rendered by the Division Bench, more particulary in case of Surajmal Jain vs. Prabir Kumar Sett reported in 1980 (2) CLJ 161, where the Division Bench was considering the categorization of an appeal filed against an order determining the rights of the parties under Order XXI Rule 101 of the Code of Civil Procedure. Rule 103 of Order XXI expressly provides such an order to be a deemed decree, but the Division Bench after interpreting the provisions contained in Chapter V, Rule 17 of the Appellate Side Rules of this Court held that such an appeal cannot be 7 treated as a First Appeal, but an appeal from order and required to be heard under Order XLI Rule 11 of the Code. The relevant observations of the Division Bench is stated as under:
"11. Civil Procedure (2nd Amendment) Act, 1976 has also altered the provisioins contained in Order 21 of the Code relating to adjudication under Rule 58. Order 21 of the Code relating to claims and objections against attachment and those under Rules 98 and 100. Order 21 of the Code relating to resistance to the delivery of possession to the decree-holder or purchaser. The Rules 58(1) and 103, Order 21 of the Code lay down the effect of adjudication of the above claims and objections. In each case, the person who is resisting or opposing attachment or execution, claims a right independently of the judgement-debtor. Under the present law the said adjudiations have been given the force of decree although the said orders do not satisfy all the requisite conditions specified in Part I of section 2 (2) of the Code. The claim is made by one who alleges to be a third party and not a representative of the judgement-debtor and the proceedings in which such a claim is made is not a suit. Thus, rules 58(4) and 103 of Order 21 have introduced a legal fiction by which the orders mentioned in these rules, although not included in the definition of the expression "decree" given in section 2(2) of the Code shall be treated as decrees. According to Rule 103, orders passed under Rules 98 and 100 of Order 21 of the Code shall have the same force as if they were decrees. Same would be equivalent to laying down that the orders shall be deemed to be decrees. The second part of Rule 103 has prescribed that the said orders would be subject to the same conditions as to appeals or otherwise. This part of Rule 103 appeals to be an elaboration of the 1st Part of Rule 103. In other words, the second part amplifies the effect of imparting the force of decrees to those orders under Rules 98 and 100 of Order 21 of the Code. In our view, the legislature did not thereby intend to make any differentiation of substance between the orders which are deemed to be decrees according to the definition of the said expression in Section 2(2) of the Code and the orders which under Rule 103 of Order 21 which 8 have been given force of decrees and have been made subject to same conditions as to appeals or otherwise. Presumably, the legislature thought it necessary to mention in Rule 103 of Order 21 the provision for appeal ex-abundant cautela to dispel any possible doubt which might have otherwise arisen because of Sections 104 and 105 of the Code prohibiting appeals against orders except those specified in Section 104 of the Code. Secondly, the Rule 103 of Order 21 has brought about a fundamental change to the scope and effect of the adjudications and order passed under Rules 98 and 100 of Order 21. Therefore, the said adjudication orders have been given the force of decrees and also made appealable.
12. The expression, "appeal or otherwise" would be clearly referable to the different provisions in the body of the Code and the Rules in the 1st Schedule relating to appeals from decrees. In other words, "otherwise" in the context means such orders would be appealable and they would be governed by substantive and procedural provisions of the Code relating to appeals from decrees. We are unable to subscribe to the view that the expression, "otherwise" is wide enough to include matters of payment of court fees payable on the memoranda of appeals from original and appellate orders under Rules 98 and 100 of Order 21 of the Code, classification of such appeals and practice and procedure relating to filing, registration and admission of such appeals. The Code does not prescribe rules relating to the said matters. We have already referred to the provisions of the Appellate Side Rules and those of the Judicial Department Manual. In this connection, we may refer to the Division Bench decision in (1) Re: Ram Dayal De, AIR 1932 Cal. 1, which laid down that in case any rule of the Civil Procedure is inconsistent with the rules of this Court, under Clause 37 of the Letters Patent, the latter shall prevail. We have already mentioned that previously appeals from orders under section 47 used to be classified from orders and they used to be heard under order 41 Rule 11 of the Code. The proceedings under Order 21, Rules 98 and 100 also relate to investigation of claims and objections in course of execution of decrees and there is reeason 9 why the rules and practice of Rules 17(b), Chapter V, should not be applied also in case of appeals against such orders under Rules 98 and 100 of Order 21 of the Code. Therefore, the said appeals should be also classified as appeals from orders and posted for hearing under Order 41 Rule 11 of the Code.
14. Our attention has been drawn to the decision of Mallik, J. in (3) Bhutnath Ta and others v. Barindra Nath Bhattacharjee and others, 37 C.W.N. 227 : A.I.R. 1933 Cal. 546. An appeal against an order under Order 21, Rule 50(2) of the Code was preferred describing the same as an appeal from an order and a court-fee of Rs.5/- was paid. The Registrar, Appellate Side as the Taxing Authority made a reference under Section 5 of the Court Fees Act, Mallik, J. answered the said reference by holding that the exact meaning of the words "conditions as to appeal or otherwise as if it were a decree" is "other conditions as to appeal or any other respects as if it were a decree". Secondly, the learned Judge answered in the affirmative the question that all conditions imposed by orders or rules outside the Civil Procedure Code were intended to be included in the words "conditions as to appeal or otherwise as if it were a decree". It may be noted that the learned advocates both for the appellant and also for the Government had conceded that more extensive meaning ought to be given to the aforesaid words. We are unable to apply the ratio of the said decision in interpreting the scope of Rule 103 of Order 21 of the Code. In the first place, as already stated, the decision in Bhutnath Ta's case (supra) was in respect of court fees payable and the decision was also rendered on concession. Further, the learned Judge who decided the said case had no occasion to consider the scope and effect of Rule 103 of Order 21 of the Code. The points which arise before us have to be considered in the context of the amendments to the Code made by the Civil Procedure Code (Amendment) Act, 1976. The learned Judge in Bhutnath Ta's case (supra) had no occasion to consider whether in the matter of court fees and the practice and procedure relating to their classification, admission etc. any distinction would be possibly made between the orders which under Section 2(2) are 10 deemed to be decrees and the orders by the Rules in the 1st Schedule of the Code have been given the force of decrees. We have already held that this Court in the matters of practice and procedure have made no distinction between the orders which are deemed to be decrees under Section 2(2) and the orders which have the force of decrees."
This Court, therefore, notices a conflicting view on the proposition whether the nature of the order is the sole and primary factor to ascertain the remedy available to an aggrieved person or it would be dependent upon the nature of the proceeding filed before the Court and the power vested under relevant provisions is exercised; to be more precise, whether an appeal or revision would be the remedy if the nature of the order is such which comes within the purview of the aforesaid provisions of the Code or it is the proceeding itself filed before the Court would be the guiding factor to decide the remedy to the aggrieved person.
Naturally an order passed by the District Judge under Section 115A of the Code is not an appealable one nor a letters patent appeal lies if such jurisdiction is exercised by the High Court under Section 115 of the Code. Whether a second revisional application lies against the order of the District Judge under Section 115A is yet a debatable question, but it does not impinge upon or fetters the power of superintendence exercised by the High Court under Article 227 of the Constitution of India. The primary object to exercise of power of superintendence is to keep all the subordinate Courts within the precinct or boundaries of law. If the order is passed under Section 115A of the Code by the District Judge reversing the order of the Trial Court having a resultant effect that the suit is held to be non- maintainable, yet such order is passed exercising a power conferred under Section 115A of the Code and in my opinion the nature of jurisdiction exercised by the Court below should be the determining factor for further remedy.
In the other given situation, if the Appellate Court exercises power conferred upon it under Section 96 of the Code and decides a dispute, which if exercised by the Court of original jurisdiction, the remedy lies by way of a revision; such order in my opinion should be 11 treated as an order passed by the Court of Appeal below provided the appeal is otherwise competent under the Code of Civil Procedure and the remedy provided in the Code against such appellate order should be the proper remedy available to the aggrieved person.
There is hardly any dispute that in view of the nature of an order passed under Order VII Rule 11 of the Code, more particularly the definition of "decree" given in Section 2(2) thereof, the appeal lies before the Appellate Court as such order neither comes within the peripheral limit of Section 104 nor under Order XLIII Rule 1 of the Code, but under Section 96 thereof. It is not always necessary that the formal decree is to be drawn up if the Code expressly provides that such order would be a deemed decree, the appeal can be maintainable before the appellate forum.
In the instant case the Appellate Court, who is in seisin of the appeal filed under Section 96 of the Code, reversed the order of the Court of original jurisdiction, which is otherwise competent under the Code of Civil Procedure itself and in view of Section 100 of the Code an appeal must lie before the High Court.
There is a conflict view taken in the Division Bench decision operating in the field and several provisions of the Code of Civil Procedure have not been considered in proper perspective.
The question, which this Court feels, requires consideration and to be answered by the Larger Bench is:
'Whether the remedy lies by filing Second Appeal, if the Revisional Court reverses the order of the Trial Court refusing to reject the plaint, as a corollary effect the plaint is rejected in view of the definition of "decree" given under Section 2(2) of the Code'. Let the revisional application be placed before the Hon'ble Acting Chief Justice for constituting the larger Bench.
(Harish Tandon, J.)