Madras High Court
A.Jawaharlal vs Thayammal on 9 April, 2015
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09.04.2015 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Second Appeal (MD) No.678 of 2014 A.Jawaharlal ... Appellant Vs. Thayammal ... Respondent Second Appeal is filed under Section 100 C.P.C against the fair and decreetal order dated 04.02.2014 made in A.S.No.41 of 2013 on the file of the I Additional Subordinate Judge, Nagercoil reversing the fair and decreetal order dated 13.02.2013 made in I.A.No.1039 of 2012 in O.S.No.23 of 2012 on the file of the Principal District Munsif, Nagercoil. !For Appellant : Mr.D.Rajkumar ^For Respondent : Mr.S.Meenakshi Sundaram :JUDGMENT
The short question that arises for disposal in this case is ?whether an appeal against an order dismissing an application filed under Order 7 Rule 11 C.P.C praying for the rejection of plaint is maintainable??. The same is treated as the substantial question of law involved in this Second Appeal.
2.The arguments advanced by Mr.D.Rajkumar, learned counsel appearing for the appellant and by Mr.S.Meenakshi Sundaram, learned counsel appearing for the respondent are heard. The relevant materials are also taken into consideration.
3.The plaintiff in the Original Suit figures as the appellant in the Second Appeal before this Court. He filed O.S.No.23 of 2012 seeking for a declaration that the cancellation of a joint will, dated 25.01.2002 by one of the joint testators was null and void and for a consequential injunction not to alienate the suit properties which were dealt with in the said will. The respondent/defendant, on her appearance filed an interlocutory application in I.A.No.1039 of 2012 under Order 7 Rule 11 C.P.C praying for the rejection of the plaint on the ground that the plaint averments did not disclose any cause of action.
4.After hearing both sides, the learned trial Judge (Principal District Munsif, Nagercoil) dismissed the said application by an order dated 13.02.2013. Challenging the said order, the respondent herein (defendant) preferred an appeal as A.S.No.41 of 2013 on the file of the Additional Subordinate Judge, Nagercoil on the basis of her contention that the dismissal of the application filed under Order 7 Rule 11 C.P.C would be deemed to be a decree.
5.The learned Additional Subordinate Judge, Nagercoil by a judgment and decree dated 04.02.2014 allowed the said appeal and rejected the plaint as prayed for by the respondent herein in her application in I.A.No.1039 of 2012 filed before the trial Court. Since the said decree of the appellate Court came to be passed in a regular appeal, the plaintiff is before this Court with the Second Appeal.
6.Without adverting to the merits of the case of the respondent regarding her prayer for rejection of plaint, the appellant confines his challenge to the decree of the lower Appellate Court, on the question of maintainability of an appeal against the order dismissing the application filed under Order 7 Rule 11 C.P.C.
7.Taking this Court through the relevant provisions in the Code of Civil Procedure, 1908, including the definition of ?decree? found in Section 2(2) and the Rules under Order 43, learned counsel appearing for the appellant advanced an argument that only in a case of rejection of plaint, the same shall be deemed to be a decree and hence, it shall be appealable.
8.It is the further contention of the learned counsel appearing for the appellant that if an order is not deemed to be a decree in accordance with Section 2(2), then as per Section 96 of Code of Civil Procedure, 1908, no appeal against any order shall lie, unless such an appeal is specifically provided anywhere in the body of the Code of Civil Procedure, 1908 or by any other law for the time being in force.
9.Referring to the said Section, learned counsel appearing for the appellant drew the attention of the Court to the Rules under Order 43 C.P.C, wherein an order returning a plaint for presentation in the proper Court, except where the procedure specified in Rule 10-A has been followed, alone has been made an appealable order and an order dismissing such an application or the application under Order 7 Rule 11 C.P.C has not been made an appealable order under the Rules found under Order 43 of Code of Civil Procedure, 1908.
10.Learned counsel appearing for the appellant also submits that there is no other law making an order dismissing the application under Order 7 Rule 11 an appealable order and there is no other provision anywhere in the Code of Civil Procedure, 1908 making such an order appealable.
11.On the other hand, Mr.S.Meenakshisundaram, learned counsel appearing for the respondent would contend that when an order allowing such application under Order 7 Rule 11 C.P.C rejecting the plaint is deemed to be a decree and made appealable under Section 96 read with Section 2 of C.P.C, there is no reason for not construing an order dismissing such a petition and refusing to return the plaint as equivalent to a decree appealable under the said provisions. In support of his contention, learned counsel appearing for the respondent made heavy reliance on an order passed by a learned single Judge of this Court sitting in the Principal Bench in ?The Ootacamund Club represented by its Secretary Vs.H.S.Mehta? reported in 2009 (5) CTC 627.
12.In the said case, as many as three Civil Revision Petitions came to be filed before the High Court, the first one against an order of granting temporary injunction till the disposal of the suit not to convene the general body meeting of the club; the second one against an order granting temporary injunction restraining the club and its office bearers from in any manner initiating action against the plaintiff therein and the third one against the order dismissing the application filed under Order 7 Rule 11 C.P.C praying for the rejection of the plaint. All the three Civil Revision Petitions were jointly heard and disposed of opining that the club which approached the High Court with the Civil Revision Petition under Article 227 of the Constitution of India did have an effective and efficacious alternative remedy of appeal and without exhausting such appellate remedy, they could not be permitted to invoke Article 227 of the Constitution of India.
13.In fact, orders passed under Order 39, Rules, 1, 2, 2-A, 4 and 10 have been made appealable orders under Order 43, Rule 1(r). The same weighed by the learned single Judge of this Court to arrive at a conclusion that the petitioners therein in the case of ?The Ootacamund Club represented by its Secretary Vs.H.S.Mehta? reported in 2009 (5) CTC 627 did have alternative remedy of appeal and they could not invoke Article 227 of the Constitution of India and that hence without exhausting the remedy of appeal, they could not be permitted to invoke Article 227 of the Constitution of India. However, the learned Judge relied on a judgment of the Supreme Court in Shah Babulal Khimji Vs.Jayaben D.Kania and another reported in AIR 1981 SC 1786 to arrive at a conclusion that the dismissal of the petition under Order 7 Rule 11 C.P.C could also be treated as a decree and hence, appealable.
14.The reliance made on the said judgment of the Supreme Court was inappropriate because the issue before the Supreme Court was whether an order passed in such an application dismissing an application filed under Order 7 Rule 11 C.P.C on the original side of the High Court is appealable or not? It was held by the Supreme Court in the said case that such an order was appealable under Clause 15 of Letters Patent. The equation of the facts of the said case with the facts of a case filed before the Court subordinate to the High Court was inappropriate. The judge made law cannot be in derogation of the enacted provisions of the statute. It should help in understanding and interpreting the provisions and it should not be held to replace an enacted provision, unless such enacted provision of law is held to be unconstitutional or otherwise ultra-vires.
15.The provisions applicable to the powers of the Court other than the High Court, regarding rejection of plaint very clear indicate what is deemed to be a decree is the rejection of plaint and not the dismissal of an application seeking rejection of plaint. In fact, the provision does not contemplate an application being filed by any of the defendants seeking rejection of the plaint on any one of the grounds stipulated in Order 7 Rule 11 C.P.C. Though similar provisions are available in Rule 10 also relating to return of the plaint, we need not confuse the same with the scope of the order passed under Order 7 Rule 11 C.P.C. To be concise, a defendant, without even filing a petition under Order 7 Rule 11, can urge the Court to reject the plaint, pointing out the existence of anyone of the grounds mentioned in Order 7 Rule 11 C.P.C. That is the reason why, the ultimate result being the rejection of the plaint alone is made appealable by deeming it to be a decree irrespective of the fact an application for such purpose was filed or not. Dismissal of an application can be equated to the rejection of an argument advanced without filing such an application, that the plaint is liable to be rejected on any one of the grounds enumerated in Rule 11. It can never be treated or deemed to be a decree as per the definition of the decree found in Section 2(2) of Code of Civil Procedure, 1908. For the sake of convenience, Section 2(2) is extracted hereunder:-
?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.If an order cannot be deemed to be a decree, whether an appeal will lie has to be decided in the light of Section 96 and Order 43 of Code of Civil Procedure, 1908. Section 96 reads as follows:-
?96.Appeal from original decree:- (1) Save where otherwise expressly provided in the body of this 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 decisions of such Court.
(2)An appeal may lie from an original decree passed ex parte. (3)No appeal shall lie from a decree passed by the Court with the consent of parties.
[(4)No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed]
17.Order 43 Rule(1) reads as follows:
?1.Appeal from orders:- An appeal shall lie from the following orders under the provisions of Section 104, namely:-
........
.......
(r) an order under Rule 2, Rule 2, [Rule 2A], Rule 4 or Rule 10 of Order XXXIX;?
18.Order 43 (1A) reads as follows:
?1A.Right to challenge non-appealable orders in appeal against decree:- (1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced. (2)In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.?
19.Order 43 of Code of Civil Procedure, 1908 does not make an appealable order dismissing the prayer made either by filing a petition or without filing a petition for rejection of the plaint. There is no special enactment or any other provision in the Code of Civil Procedure, 1908 making such an order appealable. Therefore, I am not in a position to agree with the view expressed in the judgment cited by the learned counsel appearing for the respondent and with due regard, I defer from the same and at the same time, I express my view that the same could be disregarded as a view per incuriam .
20.The above discussions will make it clear that the order dismissing the prayer for rejection of plaint shall not be deemed to be a decree and it shall be only in the form of an order and hence, no appeal shall lie assuming the same to be a decree. The provisions regarding appeal against an order found in Order 43 of Code of Civil Procedure, 1908 also do not make the said order an appealable one. Therefore, without any hesitation, this Court comes to the conclusion that the learned lower Appellate Judge has committed an error in law in entertaining the appeal against the order dismissing the application filed under Order 7 Rule 11 C.P.C and that the appeal itself should have been rejected as not maintainable. Since a decree has been passed in such an appeal by the lower Appellate Court, the same cannot be allowed to stand and it deserves to be set aside. Accordingly, the substantial question of law is answered.
21.In the result, the Second appeal succeeds and the same is allowed. Consequently, the decree of the lower Appellate Court made in A.S.No.41 of 2013 on the file of the I Additional Subordinate Court, Nagercoil is set aside and the same is dismissed as not maintainable. However, accepting the request made by the learned counsel appearing for the respondent, this Court incorporates an observation that this judgment shall not be a bar for the respondent to challenge the order passed by the trial Court in accordance with the provisions of law. No costs. Consequently, M.P(MD)No.1 of 2014 is closed.
09.04.2015 Index : yes/no Internet : yes/no sms To 1.The I Additional Subordinate Judge, Nagercoil 2.The Principal District Munsif, Nagercoil. P.R.SHIVAKUMAR,J sms Second Appeal (MD) No.678 of 2014 09.04.2015