Patna High Court
Rameshwar Thakur And Ors. vs Smt. Bhagwati Devi And Ors. on 7 December, 1981
Equivalent citations: AIR1982PAT75, 1982(30)BLJR172, AIR 1982 PATNA 75, 1982 BBCJ 155, (1982) BLJ 190, (1982) PAT LJR 167, 1982 BLJR 172
ORDER
1. This application in revision is at the instance of the plaintiffs whose plaint in Title Suit No. 3 of 1979. instituted for a declaration in respect of the deed of gift as being void and fraudulent, etc., has been rejected by the learned Subordinate Judge by applying Section 4 (b) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter to be referred to as "the Act") on the ground that, by virtue of the aforesaid provision the suit was not maintainable.
2. The Stamp Reporter had raised objection to the maintainability of this application under Section 115 of the Civil P. C. in view of the definition of the term 'decree' in Section 2 (2) read with Order VII, Rule 11 (d) of the Civil P. C. The question of maintainability was left open to be urged at the time of the final hearing of the application by the learned Judge admitting this application. Accordingly, when this application came up for hearing before a learned single Judge of this Court, he referred this case to a Division Bench and it is how it is placed before us.
3. The question of jurisdiction or maintainability of this application arises in this way that, if it is held that the impugned order was appealable then obviously that lay before the lower appellate Court and the present application in revision would be barred as provided under Section 115 (i) of the Code. In order to appreciate the question falling for our consideration it is necessary to refer to the relevant provisions of the Civil P. C. and the Act. Section 4 of the Act deals with the effects of the notification under Section 3 (i) and contemplates various consequences and one of the consequences is contemplated under clause (b) which reads as follows:--
"(b) No suit or other legal proceeding, in respect of any land in such areas shall be entertained in any Court, and in calculating period of limitation applicable to such suits and proceedings such period shall not be counted:
Provided that nothing in this clause shall apply to any proceeding under Section 48 (E) of the Bihar Tenancy Act, 1885 (Act 8 of 1885) and to the proceedings relating to recording the titles of Batiadars."
Section 37 of the Act also may be seen which creates a bar that no Civil Courts shall entertain any suit or application to vary or set aside any decision or order given or passed under this Act with respect to any other matter for which a proceeding could Or ought to have been taken under this Act. On the facts of the present case, however, we are not concerned with the exclusion of the jurisdiction of the Civil Court as provided under Section 37 of the Act and. therefore, a Bench decision of this Court in the case of Narendra Kumar Verma v. State of Bihar, (1980 BBCJ (HC) 252), which has considered the scope and the implication of the bar under Section 37 of the Act, is not applicable to this case. We, therefore, need not discuss this authority in detail.
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:--
"Where the suit appears from the statement in the plaint to be barred by any law."
This, at once, brings us to the defintion 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 sub-Sect to all those 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. Mr. Jha, however, advanced two arguments in support of this application. His first contention was that the only bar for the Civil Courts was contemplated under Section 37 of the Act and this suit was outside the purview of that section. This argument has simply been noticed to be rejected as it is apparently so fallacious that it does not call for any longer discussion as the provisions contained under Section 4 (b) of the Act are quite apparent from the same.
5. The other argument of Mr. Jha was that clause (d) of Rule 11 did not apply to the petitioners' suit, inasmuch as the reliefs prayed for, did not attract the bar or restrictions contained under Section 4 (b) of the Act. We are afraid, this argument is not available to Mr. Jha at this stage, inasmuch as, this would be an argument on the merits of the order and can be entertained only by the Court where the plaintiffs should have gone against the same. Suffice it for us to say without making any observation whatsoever, to avoid any embarrassment to either party, that on the face of it, the order rejecting the plaint was clearly passed under Order VII, Rule 11, The effect of dismissal of a suit, as distinguished from the rejection of plaint, has already been indicated by one of us in the case of Shanti Pada Ganguli v. Union of India, (AIR 1976 Patna 74) and, therefore, it is not necessary to enter into this question. Mr. Jha, however, tried to refer to some decisions where the questions of court-fees had arisen. It is not necessary to refer to any of those cases, as the case of the petitioners does not attract the facts of those cases. We, therefore, do not want to encumber our judgment by referring to any of those decisions. We would accordingly answer the question against the petitioners and hold that the rejection of the plaint was within the ambit of Order VII, Rule 11 (d) of the Civil P. C. and, therefore, the order was appealable and this revision is incompetent. It is accordingly dismissed on the ground of maintainability, leaving it, However, open to the petitioners, if so advised, to file an appeal before the appropriate authority. There shall be no order as to costs.