Rajasthan High Court - Jaipur
Boards & Boards Pvt. Ltd., Jaipur vs Himalaya Paper (Machinery) Pvt. Ltd., ... on 9 November, 1989
Equivalent citations: AIR1990RAJ120, 1990(1)WLN646
ORDER D.L. Mehta, J.
1. Petitioner has preferred this revision petition being aggrieved with the order dated 2-6-83 passed by the learned Additional District Judge, Jaipur City, Jaipur in the original suit. Suit was instituted for the recovery of the advances made by the plaintiff against the defendant. Issues were framed on 17-11-79. Issue No. 3 reads as under:--
xx xx xx xx xx This issue was decided against the plaintiff vide order dated 2-6-83. Trial Court passed the order which reads as under:--
"On issue No. 3 it is decided that the suit is barred by limitation and is liable to be dismissed and the plaintiffs claim is liable to be dismissed on that count."
2. This Court, on 6-4-89 suo motu asked the parties whether the trial Court's impugned decision dismissing the suit as time barred is appealable; and, if so, whether the revision petition can be entertained? Time was allowed to the parties to study on this point.
3. Mr. Kasliwal appearing on behalf of the plaintiff submitted that the suit has not been dismissed but the Court has held that it is liable to be dismissed. As such, according to Mr. Kasliwal, this is not a decree but is an interlocutory order and the revision is maintainable. He further submits that the Court has not directed that the suit be dismissed and, for this reason formal decree has not been drawn.
4. Mr. Kasliwal has referred before me the Code of Civil Procedure, II Edition, by Dr. Nand Lal and invited my attention to the provisions of Section 2 Sub-clause (2) relating to the decree. In the said book it has been mentioned, the words 'formal expression' appear in the definition of a decree. But, the same words 'formal expression' appear in the definition of an order in Section 2(14). Therefore, the presence or absence of a formal expression cannot be true criterion of the difference between the decree and an order. If it be urged that without formal expression there can be no decree, the answer is that the words 'appeal dismissed over the signature of the Judge' is formal expression of the decision.
5. It will not be out of place here to mention that Section 2(2) defines decree and Section 2 defines the order. Real distinction between two, definition seems to allow in the nature of the decision. Whether it is an adjudication of a particular kind or not. If the adjudication is of a nature which may determine the rights and liabilities of the parties and may some time, the proceedings then it is a decree.
6. Mr. Kasliwal has also cited before me the Code of Civil Procedure by Mulla, 14th Edition. He has referred page 18 and submitted that the word 'formal expression' has been used in the definition of the decree. He submits that all requirements of form must be complied with. He further submits that accordingly if no decree has been drawn up no appeal will lie from a judgment. He submits that in such circumstances, revision lies because, no decree has been drawn. It will not be out of place here to mention that the expression as used in Section 2 implies that a decision must be one which is complete and final as regards the Court which passed it. The decree may conclusively determine the rights of the parties, although, it does not completely dispose of the suit. Mr. Kasliwal has also referred the Code of Civil Procedure by Chitaley, 10th Edition and referred to pages 12 and 13. The distinction between a decree and an order in C.P.C. is obvious. Whereas, the decree means the formal expression of adjudication which so far as regards the Court it conclusively determine the rights of the parties in all and any of the matters in controversy in the suit; the term 'order' means formal expression of any decision which is not a decree.
7. Before dealing with the provisions of Order and decree it is necessary to deal with the definition of the judgment as given in Section 2, C.P.C. Section 2 defines the judgment, judgment means the statement given by the Judge of the grounds of a decree or order. Thus, in the definition of the judgment it is not necessary that there should be a formal expression as envisaged in the definition of the decree and order. In the judgment there should be a statement given by the Judge and the grounds on the basis of which he is passing the order or the decree. Formal expression has been intentionally avoided by the Legislature to make it a part of the decree and order. A thin distinction can also be drawn in the matter of the definition of the judgment, decree and order. In the order as well as in the decree there will be a formal expression. The difference between the two will be that in the decree there will be a final adjudication which may lead to the conclusion of the case or part of the case. However, in the order there may not be final adjudication of the rights and liabilities of the parties. For illustration, if the plaint is rejected under Order 7, Rule 11 it will be a decree and it leads to the determination of the points at issue between the parties. However, if the suit is not rejected and the prayer for refusal is rejected then it will not be a decree because, it does not lead to the conclusion of the suit and the suit will proceed.
8. Mr. Kasliwal, appearing on behalf of the petitioner, cited before me the case of Am Singh v. Jethmal, AIR 1957 Rajasthan 173. In the said case, their Lordships held that the terms, determination of the rights of the parties refers to substantive rights of the parties with regard to the merits of the case and not to other disputes between the parties, which are ancillary to the subject-matter of the suit. For instance, the question relating to the jurisdiction of the Court or limitation and other preliminary points of the suit if decided in favour of the plaintiff, would not determine the rights of the parties in relation to the suit. The proposition laid down in this case is not in dispute. Their Lordships have rightly said that if the issues relating to the jurisdiction are decided in favour of the plaintiff, then it is not a decree. However, the reverse is not true. In a case where the point of limitation is decided against the plaintiff it leads to the determination of the suit, as such, it amounts final determination of the rights and liabilities of the parties and the suit cannot proceed. In a case where the issue of limitation is decided against the plaintiff the decision will be a decree and the judgment cited by Mr. Kasliwal does not apply to the facts and circumstances of this case, as in this case point relating to the issue of limitation has been decided against the plaintiff.
9. Mr. Kasliwal has also cited before me the case of Baliram Ganpatrao Bhoot v. Manohar Damodhar Bhoot, AIR 1943 Nag-pur 204 (FB). In this case their Lordships held that interlocutory order not finally disposing of the suit is not a decree. It was further held that the refusal to draw up a decree wrongly gives a right of revision. Here it is not the case of refusal to draw the decree. It is a case of not drawing up a decree. It will not be out of place here to mention that the alleged order was passed on 2nd June, 1983. Revision petition was preferred before this Court on 21-7-83 and the record of the lower Court was also called. There was summer vacation of the Court. Preparation of the decree requires some formalities to be observed under the rules. Even if it is assumed that the Court under a misapprehension has not prepared the decree treating it as an order and not judgment even then Mr. Kasliwal cannot derive any advantage from this lapse. It was the duty of the plaintiff to apply for the decree or in any case, to point out to the Court that the decree should be drawn.
10. Mr. Kasliwal, in the alternative, submitted before me that in case the Court is of the view that the revision does not lie then the this revision petition should be treated as an appeal. He has cited before me the case of Jagat Dish Bhargava v. Jawahar Lal Bhargava, AIR 1961 SC 832 and submitted that where a decree is not drawn up and there is failure on the part of the Court to draw up a decree even then the appeal can be entertained and heard.
11. Mr. Kasliwal has also cited before me the case of Phool Chand v. Gopal Lal, AIR 1967 SC 1470. Hon'ble Supreme Court held that in very exceptional cases the appeal can be entertained and heard even in the absence of the copy of the judgment.
12. In reply to these propositions Mr. Sharma submitted that Hon'ble Supreme Court has also held in the case of Shakuntala Devi v. Kuntal Kumari, AIR 1969 SC 575, that the production of the copy of the decree is necessary and the appeal is incompetent unless memorandum thereof is accompanied by certified copy of judgment.
13. It will not be out of place here to mention that if there are two judgments of the Supreme Court then it is left open to the Judge to apply to the judgment which in the facts and circumstances of the case, appeals to the conscience of the Court and it is not necessary that later judgment should be followed if the earlier judgment has not been discussed in it.
14. Mr. Sharma has also cited before me the case of Kanji Hirjibhai v. Jivraj Dharamshi, AIR 1976 Gujarat 152. Gujarat High Court has held as under:--
"In a composite suit -- being a suit for possession and for arrears of rent -- the suit for possession was held as not competent and maintainable and the suit was directed to proceed only with regard to the claim for monetary relief.
Held, there was final adjudication on the issue of possession and this determination amounts to a decree. There is obvious difference between a simple finding and a finding which determines the suit. If a decree is not drawn up, it does not mean that the order of the Court by which rights of the parties are finally adjudicated upon is not a decree. There can be more than one final decree in a suit where two or more causes of action are joined together."
15. Mr. Sharma has also cited before me the case of State of Rajasthan v. Chander Singh, AIR 1971 Rajasthan 299 in which this Court has held as under:--
"An order holding that the appeal on behalf of one of the appellants is not maintainable amounts to a decree qua that appellant as it determines his right to maintain the appeal and is appealable. That no decree was passed in pursuance of the order makes no difference."
16. I have heard the luminaries of the Bar in detail on the point raised by them in this revision petition. Judgment stands on different footing than the order and the decree. Legislature in its wisdom has avoided the use of word 'formal expression' in the definition of the judgment as used in Section 2, C.P.C. whereas, the words, 'formal expression' have been used in the definition of the decree as defined under Section 2 as well as in the definition of the order as defined in Section 2 of the C.P.C. Similarly, it is not necessary in a decree that there should be a statement given by the Judge. Statement is to be given by the Judge only in the judgment and he records the reason for arriving at a particular conclusion in the judgment and decree is the formal expression of the conclusions arrived at by the Judge in the judgment. So, it is not necessary that there should be a formal expression of the order in the judgment, though it is desirable to be so. From the perusal of the order itself it is clear that the learned Judge has held that the suit is barred by limitation and is liable to be dismissed. The expression of the words 'liable to be dismissed' by implication means that the suit is dismissed and it may tantamount the formal expression of the dismissal of the suit, though not said in specific words. The judgment also leads to conclude in its final adjudication as the Judge has held that the suit is barred by limitation, and, as the suit which is barred by limitation cannot be entertained so, it is natural disposal of the suit and final adjudication of the rights and liabilities of the parties. Thus, I am of the view that the judgment should be considered final adjudication of the rights of the parties as far as the suit of the plaintiff is concerned. However, a mistake is there on the part of the Court also that the Court has not drawn the decree so far. The party cannot be penalised for the mistake of the Court. In the facts and circumstances, it is a fit case where the revision filed by the petitioner should be treated as an appeal. Court below is directed to prepare the decree within a period of three months from today. Record of the Court below should be sent back immediately. Petitioner who will now be appellant should apply to the Court below for the copy of the decree if he so desires and copy of the decree should be submitted by him before the appellate Court within a period of six months from now. Petitioner will also value the appeal and pay Court-fees accordingly.
17. Revision petition is disposed of accordingly and it may be registered as an appeal.
18. No order as to costs.