Anand Pratap Singh vs Chandrabali Singh And 08 Others
2018 Latest Caselaw 3692 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 33
 
										AFR
 
Case :- MATTERS UNDER ARTICLE 227 No. - 8387 of 2018
 

 
Petitioner :- Anand Pratap Singh
 
Respondent :- Chandrabali Singh And 08 Others
 
Counsel for Petitioner :- Ajay Kumar Singh; Ashish Kumar Singh
 

 
Hon'ble Manoj Misra,J.

Heard Sri Ajay Kumar Singh for the petitioner and have perused the record.

The short question involved in this petition is whether an order of the trial court holding the suit barred by Section 331 of the U.P. Zamindari Abolition and Land Reforms Act, 1951 (for short UPZA & LR Act) and directing consignment of the file, without specific direction to return the plaint to the plaintiff, followed by drawing of decree, would amount to a decree amenable to a regular appeal under Section 96 of the Code of Civil Procedure, 1908 (for shot CPC).

O.S. No.228 of 2006 was instituted by plaintiff respondents against the petitioner and others for cancellation of sale deed dated 23.12.2003. Petitioner filed written statement raising various pleas. One of them was that the suit was barred by section 331 of the UPZA &LR Act and the plaint was liable to be rejected under Order 7 Rule 11 CPC. On 15.04.2010 various issues were framed. Issue no.6 was whether the suit was barred by Section 331 of the UPZA & LR Act. Issue no.8 was whether the plaint was liable to be rejected under Order 7 Rule 11 CPC. By order dated 17.02.2011 the trial court held the suit to be barred by Section 331 of the UPZA & LR Act and directed that the file shall be consigned. There was no specific order directing that the plaint shall be returned to the plaintiff though liberty was given to the plaintiff to institute a suit for declaration before court having jurisdiction. Pursuant to the order dated 17.02.2011 a decree was drawn. Against which Civil Appeal No.15 of 2011 was filed. In this appeal the petitioner raised an objection that by order dated 17.02.2011 no decree came into existence therefore appeal would not be maintainable. It was claimed that the order dated 17.02.2011 tantamounts to return of plaint for presentation before revenue court therefore first appeal from an order would lie under Order 43 Rule 1 (a) CPC. The appellate court rejected the objection by impugned order dated 04.10.2018 and held that a regular appeal under Section 96 CPC was maintainable. To support its decision the appellate court placed reliance on the definition of decree and also on circumstances such as that there was no specific order for return of plaint to the plaintiff; that the suit was held to be barred by law; that the file was consigned; and that a decree was drawn.

Assailing the order of the appellate court dated 04.10.2018, the learned counsel for the petitioners contended that by the order of the trial court the plaint has not been specifically rejected as barred by law and therefore the order of the trial court in effect is an order to return the plaint and as such would not amount to a decree. Hence, no regular civil appeal would lie.

The learned counsel for the petitioners has placed reliance on two decisions of this Court, namely, (a) Subedar and others Vs. Mrs. Ram Kumari and others reported in 1983 AWC 920; and (b) Islam Hussain and others Vs. XVth Additional District Judge, Varanasi and others reported in 2017 (125) ALR 266 = 2018 (158) RD 125.

In Subedar's case (supra), the trial court by its order dated 17.12.1980 held that the suit was not cognizable by the civil court and thus directed return of the plaint for presentation before proper court. Against the order of the trial court an appeal was filed. The appellate court remanded the matter. Against the order of remand, first appeal from order was filed under Order 43 Rule 1(u) CPC before the High Court. An objection was raised before the High Court that since the order to return a plaint is not a decree, the appeal before lower court would be an appeal from an order under Order 43 Rule 1(a) and therefore, in view of Section 104(2) CPC, no further appeal would lie against the appellate court's order. The High Court upheld the preliminary objection.

In the instant case, the trial court order is not an order directing return of the plaint to the plaintiff. The order of the trial court as it stands does not partake the character of an order contemplated under Order 7 Rule 10 CPC against which an appeal lies under Order 43 Rule 1(a) CPC. Hence, the decision in Subedar's case (supra) would be of no help to the petitioners in this case.

In Islam Hussain's case (supra), the court had observed that in case suit is instituted in a Court which lacks jurisdiction, the appropriate order would be to direct return of plaint under Order 7 Rule 10 CPC for presentation before a court having jurisdiction and not to dismiss the suit.

The above decision is of no help to the petitioners in the instant case, inasmuch as the issue here is not as to what order ought to have been passed by the trial court but is as to whether the order passed by the trial court amounts to a decree as defined by section 2(2) CPC. Because, maintainability of the appeal under Section 96 CPC would depend on whether the order that has been passed amounts to a decree as defined by Section 2(2) CPC. Section 2 (2) CPC defines decree as under:

"(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"

A perusal of the definition of "decree" would reveal that it includes rejection of the plaint. Now what is to be seen is whether the order of the trial court amounts to rejection of plaint or return of plaint. Order 7 Rule 10 CPC provides that the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted. Whereas, Order 7 Rule 11(d) CPC provides that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. A bare perusal of the order of the trial court would reveal that it proceeds to hold the suit barred by Section 331 of the U.P. Z.A. & L.R. Act and directs consignment of the file without any direction to return the plaint to the plaintiff for presentation in a court having jurisdiction though it gives liberty to the plaintiff to institute suit for declaration of his title in a court having jurisdiction. If there had been a direction to return the plaint to the plaintiff there would have been no difficulty because an appeal would lie against such an order under Order 43 Rule 1(a) CPC. But here the trial court has held the suit barred by law and has directed consignment of the file without any specific order to return the plaint. The consequence of such an order would be equivalent to rejection of the plaint under Order 7 Rule 11 (d) CPC and would partake the character of a decree, particularly, when the court proceeds to draw a decree of its decision.

Under the circumstances, when the suit is held barred by law with no specific direction to return the plaint to the plaintiff and the trial court itself has drawn a decree pursuant to its decision, the aggrieved party has a right to prefer an appeal under Section 96 CPC. Hence, the appellate court was justified in entertaining the appeal. The order impugned therefore suffers from no legal infirmity. The petition is dismissed. It is however clarified that as to what order the trial court ought to have passed is for the appellate court to examine and in that regard no opinion has been expressed by this court.

Order Date :- 15.11.2018

AKShukla/-