In, Nimrata Shergill and another vs Shop Owners Welfare Association, Single Bench of Punjab & Haryana HC has held that the term ‘decree’ would include within its ambit an order of rejection of plaint under Order 7 Rule 11 of Code, as would be evident from the expression “shall be deemed to include the rejection of plaint” appearing in Section 2(2) of Code.
Facts
Plaintiffs, filed a summary suit under Order XXXVII of Code for grant of a decree for recovery of money with interest during the pendency of the suit and future interest till its actual realization, along with costs and legal fee dues from the defendant.
It has been pleaded that notice in the aforementioned suit filed , Summons were served ,however, the defendant failed to put in appearance in the Court within the stipulated 10 days, as envisaged under Order XXXVII Rule 3(1) of Code. Thereafter, statutory summons for judgment under Order XXXVII Rule 3(4) of Code were served upon the defendant. However, the defendant failed to file Application for leave to defend within the statutory period of 10 days. Instead, they filed an application under Order 7 Rule 11 of Code, seeking rejection of the plaint on the ground that the suit did not fall within the ambit of summary suit as contemplated under Order XXXVII Rule 1 (2) of Code. The said application was allowed and the plaint rejected.
Aggrieved by the same, the plaintiffs filed an instant revision petition under Article 227 of the Constitution of India, for setting aside the order of Trial Court.
Contention Made
Petitioner: A pointed query was put to the learned senior counsel for the petitioners qua the maintainability of the instant revision petition; When the defendant failed to file an application for leave to defend within the statutory period of 10 days and hence, on this ground alone, the suit was liable to be decreed forthwith as per the provisions of Order XXXVII Rule 3(6)(a) of Code. Therefore, the trial Court fell in error.
It was further argued, that an application under Order 7 Rule 11 of Code, was not maintainable in a summary suit. That the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, was extensive and it could be exercised to check and correct any patent error or illegality committed by a subordinate Court.
Respondent: That the supervisory jurisdiction under Article 227 of the Constitution of India, could not be invoked by the petitioner without first availing of his alternative remedy of appeal.
Court Observation
The Single Bench of Punjab & Haryana HC, while dealing with question of ;whether the instant petition under Article 227 of the Constitution of India, is maintainable or not? Observed that:
- While observing the meaning & Scope of a word “Decree’ as defined under Section 2(2) of Code, Court noted that ; By decree, it is implied that it is a formal expression of an adjudication ,wherein, the rights of the parties are conclusively determined with regard to all or any of the matters in controversy in a suit.
- Further, the term ‘decree’ would include within its ambit an order of rejection of plaint under Order 7 Rule 11 of Code, as would be evident from the expression “shall be deemed to include the rejection of plaint” appearing in Section 2(2) of Code.
- Further Bench noted; A statutory remedy of appeal has been provided under Section 96 of Code against a decree, therefore, even an order of rejection of plaint under Order 7 Rule 11 of Code would be amenable to the remedy of appeal.
Court Judgment
The Punjab & Haryana HC, While dismissing the instant Revision Petition has held that; The order of Trial Court amounts to a Decree as contemplated under Section 2(2) of the Code and the aggrieved party has a remedy of appeal under Section 96 of the Code. That being the position, this Court refused to interfere in the matter in exercise of its jurisdiction under Article 227 of the Constitution of India.
Case: Nimrata Shergill and another vs Shop Owners Welfare Association
Citation: CR 1212, 2022
Bench: Hon’ble Mrs. Justice Manjari Nehru Kaul
Decided on: 19th July, 2022.
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