Calcutta High Court - Port Blair
And Nicobar Islands And Others vs Andaman Plantation And Development on 19 December, 2025
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
[CIRCUIT BENCH AT PORT BLAIR]
PRESENT: THE HON'BLE JUSTICE HIRANMAY BHATTACHARYYA
CO/75/2025
THE LIEUTENANT GOVERNOR OF ANDAMAN
AND NICOBAR ISLANDS AND OTHERS ... PETITIONERS
VS.
ANDAMAN PLANTATION AND DEVELOPMENT
CORPORATION PVT. LTD. ...OPPOSITE PARTY
For the petitioner : Mr. Shatadru Chakraborty, Sr.Adv
Mr. Rakesh Kumar
For the opposite party : Mr. Aniruddha Chatterjee, Sr.Adv.
Mr. Asif Hussain
Ms. Shipra Mondal
Reserved on : December 16, 2025
Judgment on : December 19, 2025
HIRANMAY BHATTACHARYYA, J.
1. This application under Article 227 of the Constitution of India is at the instance of the defendant Nos. 2 to 5 and is directed against an order dated July 01, 2025 passed by the learned District Judge, Andaman and Nicobar Islands in Title Appeal No. 7 of 2025 reversing the order being no. 78 dated April 24, 2025 passed by the learned Joint Civil Judge, Senior Division, Port Blair in Title Suit No. 157 of 2016.
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2. The opposite party No. 1 herein filed a suit for declaration that he is in lawful and bonafide possession in respect of suit land and for a further declaration that the opposite party No. 1 is entitled to renewal of the grant dated April 09, 1987 for a further period of thirty years and for mandatory injunction directing the petitioners and each one of them to renew the old grant and for perpetual injunction restraining the petitioners from interfering with the peaceful possession and enjoyment of the suit land by the opposite party No. 1, in any manner whatsoever till the expiry of the renewal period.
3. The petitioners filed an application under Order VII Rule 11 of the Code of Civil Procedure (for short, "the CPC") praying for rejection of the plaint. Pursuant to an order dated July 18, 2019 passed in CO No. 22 of 2019 a preliminary issue as to the maintainability of the suit in its present form and in law was framed. The learned Trial Judge by an order dated April 24, 2025 decided the aforesaid preliminary issue against the opposite party No. 1. By the said order, the application filed by the petitioners under Order VII Rule 11 of the CPC was allowed and the suit was dismissed on contest.
4. Challenging the said order dated April 24, 2025 passed in Title Suit No. 157 of 2016, the opposite party No. 1 herein preferred a Title Appeal being no. 7 of 2025. The learned Judge of the first appellate Court, by an order dated July 01, 2025 allowed the Title Appeal thereby setting aside the order dated April 24, 2025 passed by the 3 learned Trial Judge in Title Suit No. 157 of 2016. By the said order, the learned Judge was directed to take evidence in the case and decide, the case properly after taking evidence and the case was sent on remand to the learned Trial Judge for its proper adjudication.
5. Being aggrieved by the order dated July 01, 2025, the defendant nos. 2 to 5 have approached this Court by filing an application under Article 227 of the Constitution of India.
6. Mr. Aniruddha Chatterjee, learned senior advocate appearing for the opposite party no. 1 raised a preliminary objection as to the maintainability of the instant application under Article 227 of the Constitution of India. Mr. Chatterjee contended that the learned Judge of the first appellate Court allowed the Title Appeal and remanded the case to the learned Trial Judge for proper adjudication.
7. Mr. Chatterjee contended that the order dated July 01, 2025 passed by the learned District Judge is an order of remand passed under Order XLI Rule 23 of the CPC. He submitted that an appeal shall lie against the order dated July 01, 2025 as an appeal from order under Order XLIII Rule 1(u) of the CPC. In support of such contention, Mr. Chatterjee placed reliance upon the judgment of the Hon'ble Full Bench in the case of the Deputy Director, Employees' State Insurance Corporation vs. Ward Memorial Church School and another reported at 2023 SCC OnLine Cal 2914. 4
8. Mr. Shatadru Chakraborty, learned senior advocate for the petitioners seriously disputed the submission made by Mr. Chatterjee. He contended that the application filed under Order VII Rule 11 of the CPC was allowed by the learned Trial Judge thereby rejecting the plaint. He contended that an order rejecting the plaint is a "decree" as defined under Section 2(2) of the CPC.
9. He contended that an appeal lies against an order rejecting the plaint under section 96 of the CPC. He submitted that since the order rejecting the plaint has been reversed by the learned Judge of the first appellate Court in a Title Appeal thereby restoring the suit, such an order is neither a "decree" under Section 2(2) of the CPC nor an "order" from which appeal lies under Section 104 read with Order XLIII Rule 1 of the CPC. He, therefore, contended that an application under Article 227 of the Constitution of India is maintainable against the order dated July 01, 2025 passed in Title Appeal no. 7 of 2025.
10. Mr. Chakraborty further contended that the appellate Court while setting aside the order rejecting a plaint and directing trial of the suit on merit did not exercise the power under Order XLI Rule 23 of the CPC. He further contended that though learned Judge of the first appellate Court in the judgment dated July 01, 2025 recorded that the matter was sent on remand to the learned Trial Judge but the said judgment is in substance an order directing learned Trial Judge to entertain the plaint and proceed with the suit. In support of 5 such contention, Mr. Chakraborty placed reliance upon a decision of the Hon'ble Division Bench in the case of Shyam Sundar Paul vs. Goutam Poddar and others reported in AIR 2022 Cal 151.
11. Mr. Chakraborty, learned senior advocate sought to distinguish the decision of the Hon'ble Full Bench in the case of Deputy Director, Employees' State Insurance Corporation (supra) by contending that only the answer on the point of reference is the ratio decidendi which is only binding upon this Court and other observations more particularly the observations made in paragraphs 47 and 103 of the said report are obiter dicta.
12. In support of his contention that it is only the ratio decidendi is binding and not the obiter dictum, Mr. Chakraborty placed reliance upon a decision of the Hon'ble Division Bench of the Bombay High Court in the case of Commissioner of Income-Tax vs. Thana Electricity Supply Ltd. reported in 1993 SCC OnLine Bom 591.
13. In reply Mr. Chatterjee, learned senior advocate contended that the observations made by the Hon'ble Full Bench in paragraphs 47 and 103 of the decision in the case of Deputy Director, Employees' State Insurance Corporation (supra) cannot be said to be an obiter dictum, as such opinion was expressed on a question that arose for determination of the Hon'ble Full Bench and, therefore, the observations made in the said paragraphs are also binding upon this Court.
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14. Heard learned advocates for the parties and perused the materials placed.
15. "Decree" is defined in Section 2(2) of the CPC. Section 2(2) of the Code is extracted hereinafter.
" 2. ... ... ...
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 before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."
16. On a bare reading of the said definition, it is evident that decree shall be deemed to include rejection of a plaint.
17. An appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decision of such Court under Section 96 of the CPC. The learned Trial Judge by an order dated April 24, 2025, decided the preliminary issue as to the maintainability of the suit against the plaintiff/opposite party. The learned Trial Judge allowed the application under Order VII Rule 11 of the CPC and also dismissed the suit on contest.
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18. An order allowing an application under Order VII Rule 11 of the CPC squarely falls within the inclusive definition of "decree" under Section 2(2) of the CPC. An order dismissing the suit after deciding the preliminary issue as to the maintainability of the suit against the plaintiff would also be a "decree" within the main part of the definition section i.e. Section 2(2) of the CPC. Thus, on both counts i.e. rejection of a plaint as well as dismissal of the suit by the trial court, the decree is appealable under Section 96 of the CPC.
19. The opposite party No. 1 herein challenged the decree by preferring an appeal under Section 96 of the CPC and the said appeal was allowed by the order dated July 01, 2025.
20. The question that arises for consideration is whether the order dated July 01, 2025 is a "decree" within the meaning of the Section 2(2) of the CPC or an appealable "order" under Section 104 of the CPC. The scope and ambit of decree and remedy available under the CPC have been explained by the Hon'ble Supreme Court in the case of Mangluram Dewangan vs. Surendra Singh reported in (2011) 12 SCC 773. The relevant paragraphs are quoted below:-
"11. The normal remedies available under the Code whenever a civil court makes an order under the Code are as under:
(i) Where the order is a 'decree' as defined under Section 2 of the Code, an appeal would lie under Section 96 of the Code (with a provision for a second appeal under Section 100 of the Code).
(ii) When the order is not a 'decree', but is an order which is one among those enumerated in Section 104 or Rule 1 of Order 43, an appeal would lie under Section 104 or under Section 104 read with order 43, Rule 1 of the Code (without any provision for a second appeal).
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(iii) If the order is neither a 'decree', nor an appealable 'order' enumerated in Section 104 or Order 43 Rule 1, a revision would lie under Section 115 of the Code, if it satisfies the requirements of that section.
12. The difference between a 'decree' appealable under Section 96 and an 'order' appealable under Section 104 is that a second appeal is available in respect of decrees in first appeals under Section 96, whereas no further appeal lies from an order in an appeal under Section 104 and Order 43, Rule 1 of the Code.
13. Section 96 of the Code provides that save where otherwise expressly provided in the body of the Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorized to hear appeals from the decision of such court. The word 'decree' is defined under Section 2(2) of the Code thus:
2.(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 before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;
14. A reading of the definition of decree in Section 2(2) shows that the following essential requirements should be fulfilled if an order should be treated as a 'decree':
(i) there should be an adjudication in a suit;
(ii) the adjudication should result in a formal expression which is conclusive so far as the court expressing it;
(iii) the adjudication should determine the rights of parties with regard to all or any of the matters in controversy in the suit; and
(iv) the adjudication should be one from which an appeal does not lie as an appeal from an order (under Section 104 and order 43 Rule 1 of the Code) nor should it be an order dismissing the suit for default
21. After going through the order dated July 01, 2025 passed by the learned Judge of the first appellate Court in Title Appeal No. 7 of 9 2025 this Court finds that there has been no determination of the rights of the parties with regard to any of the matter in controversy in the suit. The preliminary issue of maintainability of the suit has also been directed to be decided at the time of hearing of the suit after taking evidence.
22. This Court therefore, holds that the order dated July 01, 2025 is not a "decree" as defined under Section 2(2) of the CPC.
23. This Court has to now decide whether the order dated July 01, 2025 passed by the learned Judge of the first appellate Court is an order appealable under Section 104 read with Order XLIII Rule 1(u) of the Code.
24. At this stage it would be beneficial to reproduce Order XLI Rule 23 of the Code, which reads thus:
"23. Remand of case by Appellate Court.- Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.
25. Upon reading the provisions of Order XLI Rule 23 of the Code, it is evident that the following conditions must exist for passing an order of remand by the appellate Court which are -10
(i) The entire suit and not a portion of it should be disposed of by the Court from whose decree the appeal is preferred;
(ii) disposal must be on a preliminary point; and
(iii) reversal of the decree by the appellate Court.
26. As to what are the tests for determining whether a decision in a suit is on a preliminary point have been laid down by the Hon'ble Division Bench of the Calcutta High Court in the case of Nirmala vs Galop reported at AIR 1934 Calcutta 49. It was held therein that the meaning of the words "preliminary point" has been correctly laid down by the decision of a Full Bench of the Madras High Court in the Malayath Veetil Raman Nayar Vs. Krishna Nambudripad reported at AIR 1922 Madras 505, wherein it was pointed out the words "preliminary point" are not confined to such legal points only as will be applied as a bar in suit but comprehend all such points as may have prevented the Court from disposing of the case on the merits whether such points are pure questions of law or pure questions of fact. It was further pointed out that preliminary point must be one which must be independent of the merits.
27. This Court has to now decide whether the suit was disposed of by the learned trial Judge on a preliminary point.
28. It is evident from the order dated April 24, 2025 passed by the learned trial Judge in Title Suit No. 157 of 2016 that pursuant to an 11 order dated July 18, 2019 passed in C.O. 22 of 2019 a preliminary issue was framed whether the suit is maintainable in its present form and in law. Subsequent to passing the order in C.O. 22 of 2019, the application under Order VII Rule 11 of the Code was filed. The learned trial Judge decided the preliminary issue against the plaintiff and dismissed the suit by an order dated April 24, 2025. After reading the order dated April 24, 2025, this Court is of the considered view that the decision on the point of maintainability of the suit prevented the Court from disposing of the case on merits. To the mind of this Court, the learned trial Judge disposed of the suit upon a preliminary point by a decree dated April 24, 2025. Though the order dated April 24, 2025 records that the application under Order VII Rule 11 of the Code was allowed, this Court is of the considered view that the portion of the order allowing the application under Order VII Rule 11 of the Code got subsumed in the order disposing of the suit upon a preliminary point. Thus, in reality the order dated April 24, 2025 disposed of the suit upon a preliminary point, which undoubtedly satisfies the essential requirements of a "decree" as defined under Section 2(2) of the Code.
29. The decree dated April 24, 2025 was reversed by the appellate Court by an order dated July 01, 2025. The essential conditions for passing an order of remand under Order XLI Rule 23 of the Code namely disposal of the suit on a preliminary point and reversal of 12 such decree by the appellate Court exists in the case on hand. By the order dated July 01, 2025, the appellate Court remanded the case to the learned trial Judge for proper adjudication with a direction to take evidence as per the direction given in C.O. 22 of 2019 and decide the case after taking evidence and at the time of final adjudication of the case, to decide the issue on the maintainability point as first issue.
30. In view of the aforesaid discussion, this Court holds that the order dated July 01, 2025 was passed by the learned Judge of the first appellate Court in exercise of powers under Order XLI Rule 23 of the Code. To the mind of this Court, the order dated July 01, 2025 is not "decree" but an order which is one among those enumerated in Section 104 and an appeal would lie against such order under Section 104 read with Order XLIII Rule 1(u) of the Code.
31. Now the question arises whether availability of remedy by way of appeal bars the exercise of supervisory jurisdiction by the High Court under Article 227 of the Constitution of India.
32. The Hon'ble Supreme Court in the case Virudhunagar Hindu Nadargal Dharma Paribalana Sabai vs. Tuticorin Educational Society reported at (2019) 9 SCC 538 made a distinction between (i) cases where the alternative remedy is available before Civil courts in terms of the provisions of the Civil Procedure Code and (ii) cases where such remedy is available under special enactments and/or 13 statutory rules and the fora provided therein happen to be quasi judicial authorities and tribunals. It was held therein that in cases which may involve civil suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of the Code, may have to be construed as a near total bar. It was further held that the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy is provided under the Code of Civil Procedure itself. The Hon'ble Supreme Court held thus-
"12. But Courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before CivilCourts in terms of the provisions of Code of Civil Procedure, and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before Civil Courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which Respondents 1 and 2 invoked the jurisdiction of the High Court. This is why, a 3-member Bench of this Court, while overruling the decision in Surya Dev Rai v. Ram Chander Rai, pointed out in Radhey Shyam v. Chhabi Nath that "orders of Civil Court stand on different footing from the orders of authorities or tribunals or Courts other than judicial/Civil Courts.
13. Therefore wherever the proceedings are under the Code of Civil Procedure and the forum is the Civil Court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self- imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself."
(emphasis supplied) 14
33. The Hon'ble Supreme Court in the case Koushik Mutually Aided Cooperative Housing Society vs. Ameena Begum reported at (2023) SCC OnLine SC 1662 held that when there is an express provision under the Code of Civil Procedure under which an appeal is maintainable, a revision petition cannot be filed bypassing the appellate remedy
34. In view of availability of a remedy by way of appeal under the provisions of the Code of Civil Procedure and in the light of the aforesaid well settled proposition of law, this Court is not inclined to entertain this application under Article 227 of the Constitution of India.
35. This Court has to now decide on the issue of applicability or otherwise of the decisions cited at the bar.
36. In Shyam Sundar Paul (supra), the learned trial Judge rejected the plaint under Order VII Rule 11 (d) of the Code and in the appeal from the said order, the appellate Court had set aside the said order and directed the trial of the suit on merit. The Hon'ble Division bench after noting the observations made by the appellate Court arrived at a factual finding that although the learned District Judge said that he was remanding the case, he did not in fact do so and the order amounts to a direction to the trial Court to entertain the plaint and proceed with the suit. The said reported decision being distinguishable on facts cannot be applied to the case on hand. 15
37. The distinction between the ratio decidendi and obiter dictum has been succinctly explained by Chagla C. J. in the case of Mohandas Issardas vs. A.N. Sattandhar reported at AIR 1953 Bom 113, which was reiterated in Thana Electricity Supply Ltd (supra) wherein the Hon'ble Bombay High Court held thus -
"31. ... The distinction between the ratio decidendi and obiter dictum has been very beautifully explained by Chagla C.J. in the above case (at page 1160) in the following words (at page 115 of AIR 1955 Bom):
".... an obiter dictum is an expression of opinion on a point which is not necessary for the decision of a case. This very definition draws a clear distinction between a point which is necessary for the determination of a case and a point which is not necessary for the determination of the case. But in both cases points must arise for the determination of the Tribunal. Two questions may arise before a court for its determination. The court may determine both although only one of them may be necessary for the: ultimate decision of the case. The question which was necessary for the determination of the case would be the 'ratio decidendi'; the opinion of the Tribunal on the question which was not necessary to decide the case would be only an 'obiter dictum'."
32. ... It was rightly held by Chagla C.J. (at page 1161 of 56 BLR) (at page 115 of AIR 1955 Bom):
"It cannot be suggested that the doctrine of 'obiter dicta' was so far extended as to make the courts bound by any and every expression of opinion either of the Privy Council or of the Supreme Court, whether the question did or did not arise for the question did or did not arise for the determination of the higher judicial authority."
33. ... In the above decision, a distinction has also been drawn between obiter dictum and casual observations made by the court. Even in regard to the decisions of the Supreme Court, it was clearly held that it would be incorrect to say that every opinion of the Supreme Court would be binding on the High 16 Courts in India. The only opinion which would be binding would be an opinion expressed on a question that arose for the determination of the Supreme Court."
(emphasis supplied)
38. Mr. Chakraborty would vehemently contend that the observation of the Hon'ble Full Bench in paragraphs 47 and 103 of the decision in the case of Deputy Director, Employees' State Insurance Corporation (supra) is /are opinion(s) expressed by the Hon'ble Judges which was/ were not necessary to decide the point of reference and would be only an "obiter dictum" and, therefore, not binding upon this Court.
39. Per Contra, Mr. Chatterjee, would contend that while deciding the point of reference, some additional questions arose before the Hon'ble Full Bench for determination of the point of reference and such additional questions were necessary for the determination of the point of reference and, therefore, expression of opinion on such questions would be the " ratio decidendi".
40. The question that was framed for reference before the Hon'ble Full Bench was 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.
41. The point of reference was answered by holding that the proper remedy would be to file a writ petition under Article 227 of the Constitution of India.
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42. From the observations made in paragraphs 47 and 103 of the said reports, this Court finds that the issue that arose for consideration in the said paragraphs was what would be the remedy when the appellate Court either affirms or reverses the order rejecting the plaint thereby restoring the suit to be tried on merits. While answering such issue an opinion was expressed that such an order is in effect an order of remand under Order XLI Rule 23 of the Code. Though Mr. Chatterjee placed strong reliance on the observations made in the said paragraphs in support of his preliminary objection as to maintainability of this application but such observations were confined to proceedings which arose out of an order passed under Order VII Rule 11 of the Code. As to whether an application under Article 227 of the Constitution of India is maintainable against an order of remand passed by the appellate Court after reversing a decree disposing of a suit on preliminary point by the Trial Judge did not arise for consideration before Hon'ble Full Bench in the said reported decision
43. This Court is, therefore, of the considered view that the decision of the Hon'ble Full bench Deputy Director, Employees' State Insurance Corporation (supra) cannot be of any assistance while deciding the issue that arose for consideration in the case on hand. For such reason, this Court refrains from making any 18 observation on the issue whether the observation made in paragraphs 47 and 103 are "ratio decidendi" or "obiter dictum".
44. For all the reasons as aforesaid, the instant application under Article 227 of the Constitution of India stands dismissed as not entertained. Petitioner will be at liberty to challenge the order impugned before the proper forum. It is , however, made clear that all observations made hereinbefore are only to support the ultimate conclusion of this Court.
45. There shall be, however, no order as to costs.
46. Urgent Photostat certified copy of this judgment, if applied for, shall be granted to the parties as expeditiously as possible, upon compliance of all formalities.
( HIRANMAY BHATTACHARYYA, J. )