Madhya Pradesh High Court
Jai Narain Charitable Registered ... vs Smt. Kumud Verma And Ors. on 24 February, 1998
Equivalent citations: AIR1999MP37, AIR 1999 MADHYA PRADESH 37
JUDGMENT S.C. Pandey, J.
1. This appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 11-2-1997 in C. A. No. 31-A/95, whereby the XIth Additional District Judge, Jabalpur has dismissed the appeal filed by the appellant against the judgment dated 20-9-1993 passed by VIth Civil Judge Class-1, Jabalpur in Civil Suit No. 11-A/90.
2. It is not necessary to state the facts of this case because the learned trial Judge had rejected the plaint in exercise of its power under Order 7 Rule 11 of the Code of Civil Procedure, holding that the suit was not maintainable. The learned trial Judge did not frame adecree. Thereupon, the appellant filed an appeal against the judgment 20-9-1993 without filing the copy of decree. It is not disputed that the learned trial Judge did not draw up a decree. The attempt on the part of the appellant to get a decree drawn up also failed. The lower appellate Court has rejected the appeal filed by the appellant on the ground that in absence of a copy of decree no first appeal lay.
3. On the aforesaid facts the appeal can be disposed of on Substantial Question No. (c) framed by this Court on 29-7-97. It is not necessary to answer Questions Nos. (a) and (b). The Question No. (c) is as follows :--
"(c) Whether plaintiff/appellant could be deprived of his right to appeal merely because the trial Court refused to draw up a decree by order dated 31-1-1994 ?"
4. The definition of "decree" Under Section 2 Sub-section (2) of the C.P.C. reads 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."
The definition of "decree" quoted above makes it clear that rejection of plaint is included in the definition of "decree" and, therefore, the trial Court was bound to frame a decree when it rejected the plaint on the ground that the suit was not maintainable. Even otherwise, if the trial Court had come to the conclusion on merits that the suit was not maintainable, it was bound to frame a decree in view of the first part of the definition of "decree". Once the judgment passed by the trial Court amounted to a decree, the trial Court was under misapprehension of law that no decree need be framed. The appellant tried to get a decree framed but the application too was rejected by the trial Court. The framing of a decree is essentially, an act of a Court. It is well established that parties cannot suffer on account of mistake of a Court. Actus curiae neminem gravabit. Therefore, it was the duty of the learned Judge of the lower appellate Court to direct the trial Court to frame a decree as was held by the Supreme Court in the case of Phoolchand v. Gopal Lal, reported in AIR 1967 SC 1470.
5. The lower appellate Court failed to see that it should not have dismissed the appeal filed by the appellant on the ground that he had not filed a certified copy of the decree. It was impossible for the appellant to file copy of the decree when the trial Court did not frame it. The law does not require a man to do something which is impossible to do. Lex non cogit ad impossibilia. On these short grounds the judgment and decree passed by the lower appellate Court is liable to be set aside.
6. For the aforesaid reasons it is not necessary to consider the alternative ground raised by the learned counsel for the appellant that even otherwise, the lower appellate Court was competent to hear the appeal under Order 20 Rule 6-A of the Code of Civil Procedure. However, it is obvious that the appellant could have taken the benefit of Order 20 Rule 6-A of the C.P.C.
7. The learned counsel for the respondents, however, tried to raise certain other grounds which have not been considered by the lower appellate Court. In the opinion of this Court, it is for the lower appellate Court to decide the grounds raised by the parties on merits of the appeal when the case is sent back to it on remand. Both the parties are free to raise grounds relevant for decision of the appeal.
8. The result of the aforesaid discussion is that this appeal succeeds and is allowed. The impugned judgment and decree of the lower appellate Court are set aside. The case is sent back to the lower appellate Court with a direction that it shall hear the case on merits. However, before hearing the case on merits, it shall direct the trial Court to frame a decree and the appellant may obtain a certified copy of the decree of the trial Court for filing it in the appeal before first appellate Court. Since the decree has not been framed, there would be no question of condonation of delay under Section 5 of the Limitation Act as the appellant could obtain a certified copy of the decree only after it is framed and the time taken for obtaining a copy of decree is liable to be excluded under Section 12 of the Limitation Act. The lower appellate Court, thereafter, shall decide the points involved in the appeal in accordance with law within three months from the date of receipt of copy of this judgment.