Patna High Court
Ram Barai Bhagat And Ors. vs Munni Lal Singh And Ors. on 9 August, 1983
Equivalent citations: 1984(32)BLJR3
JUDGMENT Birendra Prasad Sinha, J.
1. The question for consideration in this case is whether the dismissal of a suit on a preliminary question will amount to a decree as defined under Section 2(2) of the Code of Civil Procedure (hereinafter referred to as 'the Code)' and whether an appeal shall lie against such an order.
2. The plaintiffs-opposite party filed a suit being Title Suit No. 245 of 1972 in the Court of Munsif, Siwan, for declaration of their title in some lands and for temporary injunction. During the pendency of the suit, another Title Suit No. 91 of 1973 was filed in the Court of Subordinate Judge with regard to the same subject matter and on the same cause of action. Title Suit No. 245 of 1972 was allowed to be withdrawn on a prayer made by the plaintiffs. In the other title suit, namely, Title Suit No. 91 of 1973, the defendants raised a preliminary point that it was a subsequent suit with respect to the same subject-matter and was not maintainable as the Court had not permitted the plaintiffs to file another suit after giving the permission to withdraw Title Suit No. 245 of 1972. The learned Additional Subordinate Judge by his order dated 18.3.1978 held that the plaintiffs had withdrawn the previous suit without getting the permission to file a fresh suit and, therefore, the present suit (Title Suit No. 91 of 1973) was not maintainable. The plaintiffs thereafter filed an appeal which was registered as Title Appeal No. 42/44 of 1978/80. In the appeal the defendants raised an objection that the appeal was not maintainable inasmuch as no decree had been prepared nor one could be prepared against the order passed by the learned Additional Sub-Judge on 18.3.1978 holding that the suit was not maintainable. The learned Additional District Judge has found that the appeal is maintainable because the adjudication by the learned Subordinate Judge as to whether the suit was maintainable or not amounts to a decree which is appealable. The defendants have thereafter come in revision to this Court against the order passed by the learned Additional District Judge.
3. 'Decree' as defined under Section 2(2) of the Code:
means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determine 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 47 or 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.
It is needless to emphasise that a decision holding that a suit is not maintainable conclusively determines the rights of the parties in the suit. Such an adjudication on a preliminary point raised by the defendants in a suit really results in the dismissal of the suit on that point alone. It thus amounts to a formal expression conclusively determining the rights of the parties. I am supported in this view by Bench decisions in Mathura Prasad and Anr. v. Kanhaiya Lal and Anr. A.I.R. 1941 Andh. 590 and Nand Kumar Sinha v. Rai Bahadur Pushupati Ghosh and Ors. A.I.R. 1941 Patna 385. In the case of Nand Kumar Singh (supra) it was held that even an order striking off the names of the defendants against whom the suit was held not to be maintainable was a decree within the meaning or Section 2(2) of the Code and was appealable as such.
4. When the Court comes to the conclusion that the suit is not maintainable for any of the reasons given in Order 7, Rule 11 of the Code, then the plaint has to be rejected. It is well established that an ordfer rejecting a plaint amounts to a decree as defined under Section 2(2) of the Code and is appealable as such. In the instant case the Subordinate Judge on a consideration of the facts and circumstances of the case held that plaintiffs' suit was not maintainable. By doing so he conclusively determined the rights of the parties concerned and such an adjudication is a decree within the meaning of Section 2(2) of the Code. The learned Additional District Judge has come to the right conclusion and I do not find any reason to interfere with the order passed in appeal.
5. Mr. Pandey, learned Counsel appearing on behalf of the petitioners, however, submitted that by reading the order dated 18.3.1978 passed by the learned Subordinate Judge holding that the present suit was not maintainable, it appears that the learned Subordinate Judge has not yet passed the anal order dismissing the suit. Learned Counsel further submitted that if the suit has not been formally dismissed as yet, a decree could not be prepared and in absence of a decree the appeal before the Additional District Judge is not maintainable. Learned Counsel referred to Order 41, Rule 1 of the Code and submitted that every memorandum of appeal must be accompanied by a copy of the decree appealed from and of the judgment on which it is founded. This objection does not seem to have been raised before the learned Additional District Judge before whom the appeal is pending and refrain from passing any order in this respect.
6. In the result, this application fails and is dismissed, but without costs.