Calcutta High Court (Appellete Side)
The Deputy Director vs Ward Memorial Church School And ... on 19 September, 2023
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
BEFORE:
The Hon'ble Justice Soumen Sen
And
The Hon'ble Justice Amrita Sinha
And
The Hon'ble Justice Kausik Chanda
CO 3904 of 2017
The Deputy Director, Employees' State Insurance Corporation
Vs.
Ward Memorial Church School and Anr.
For the Petitioner : Mr. Probal Kr. Mukherjee, Sr. Adv.,
Mr. Shiv Chandra Prasad, Adv.
For the O.P. No.1. : Mr. Sounak Bhattacharya, Adv.,
Mr. Sounak Mondal, Adv.,
Mr. Abhirup Halder, Adv.,
Mr. Anirban Saha Roy, Adv.
For the State : Mr. S.N. Mookherjee, Ld. Adv. General,
Amicus Curiae : Mr. Bhaskar Ghose, Sr. Adv.,
Mr. Rwitendra Banerjee, Adv.
Hearing concluded on : 13th July, 2023
Judgment on : 19th September, 2023
Soumen Sen, J.: The question which has been framed for the
reference is as follows:
"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."
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2. The genesis of the reference is an order passed by the first
Appellate Court, by which the judgment of the trial court was reversed.
3. The facts that are necessary for better appreciation of the
reference are stated below.
4. A notice was issued by the Deputy Director, Employees State
Insurance Corporation (in short, 'Corporation'), regarding implementation of
the Employees' State Insurance Act, 1948 (in short 'the said Act, 1948') and
payment of contribution under Section 40 of the said Act, Ward Memorial
Church School (in short, 'School') challenged the notice and filed a Civil Suit
being T.S. No.327 of 2012 before the 2nd Court, Civil Judge, Junior Division,
at Midnapore. The Corporation filed an application for rejection of the plaint
on the ground that the notice can only be challenged before the Employees'
Insurance Court and the Civil Court has no jurisdiction to decide the
subject matter of the dispute.
5. The learned Civil Judge vide an Order No.6 dated 26th July, 2013
allowed the application for rejection under Order 7 Rule 11(d) CPC and the
suit was thus, dismissed.
6. The School being aggrieved by the aforesaid order filed an appeal
under Section 96 read with Order 41 Rule 1 CPC being Title Appeal No. 86
of 2013 before the learned Additional District Judge, 7th Court, Paschim
Midnapore. The 1st Appellate Court allowed the appeal vide an order dated
20th July, 2017 and the judgment and order of the trial court was set aside.
The First Appellate Court held that Civil Court has jurisdiction to adjudicate
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the dispute raised by the School and the learned Trial Court was directed to
decide the dispute within a time frame specified in the said order.
7. The Corporation challenged this order by a Civil Revision filed
under Article 227 of the Constitution of India. After considering the
judgments of the Hon'ble Division Bench of this Court in Suraj Mull Gouti
vs. Sumati Gouti & Ors. reported at 2005(2) WBLR Cal 296, Amal
Chandra Mondal vs. Anita Biswas & Anr. reported at 2006(2) CalLJ 180
and Surajmal Jain v. Prabir Kumar Sett reported at 1980(2) Cal LJ 161
Hon'ble Justice Harish Tandon was of the view that the decisions in Suraj
Mull Gouti (supra) and Amal Chandra Mondal (supra) are in conflict with
Surajmal Jain (supra). The observations of Justice Tandon relevant to the
issue are stated below:
"This Court, therefore, notices a conflicting view on the proposition
whether the nature of the order is the sole and primary factor to
ascertain the remedy available to an aggrieved person or it would be
dependent upon the nature of the proceeding filed before the Court and
the power vested under relevant provisions is exercised; to be more
precise, whether an appeal or revision would be the remedy if the
nature of the order is such which comes within the purview of the
aforesaid provisions of the Code or it is the proceeding itself filed before
the Court would be the guiding factor to decide the remedy to the
aggrieved person.
Naturally an order passed by the District Judge under Section 115A of
the Code is not an appealable one nor a letters patent appeal lies if such
jurisdiction is exercised by the High Court under Section 115 of the
Code. Whether a second revisional application lies against the order of
the District Judge under Section 115A is yet a debatable question, but it
does not impinge upon or fetters the power of superintendence exercised
by the High Court under Article 227 of the Constitution of India. The
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primary object to exercise of power of superintendence is to keep all the
subordinate Courts within the precinct or boundaries of law. If the order
is passed under Section 115A of the Code by the District Judge
reversing the order of the Trial Court having a resultant effect that the
suit is held to be non-maintainable, yet such order is passed exercising
a power conferred under Section 115A of the Code and in my opinion
the nature of jurisdiction exercised by the Court below should be the
determining factor for further remedy.
In the other given situation, if the Appellate Court exercises power
conferred upon it under Section 96 of the Code and decides a dispute,
which if exercised by the Court of original jurisdiction, the remedy lies
by way of a revision; such order in my opinion should be treated as an
order passed by the Court of Appeal below provided the appeal is
otherwise competent under the Code of Civil Procedure and the remedy
provided in the Code against such appellate order should be the proper
remedy available to the aggrieved person.
There is hardly any dispute that in view of the nature of an order
passed under Order VII Rule 11 of the Code, more particularly the
definition of "decree" given in Section 2(2) thereof, the appeal lies before
the Appellate Court as such order neither comes within the peripheral
limit of Section 104 nor under Order XLIII Rule 1 of the Code, but under
Section 96 thereof. It is not always necessary that the formal decree is
to be drawn up if the Code expressly provides that such order would be
a deemed decree, the appeal can be maintainable before the appellate
forum.
In the instant case the Appellate Court, who is in seisin of the appeal
filed under Section 96 of the Code, reversed the order of the Court of
original jurisdiction, which is otherwise competent under the Code of
Civil Procedure itself and in view of Section 100 of the Code an appeal
must lie before the High Court.
There is a conflicting view taken in the Division Bench decision
operating in the field and several provisions of the Code of Civil
Procedure have not been considered in proper perspective.
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The question, which this Court feels, requires consideration and to be
answered by the Larger Bench is:
'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'. (emphasis
supplied)
8. The earlier Larger Bench presided over by Hon'ble Justice Sanjib
Banerjee presently the Chief Justice of the Meghalaya High Court made the
following observations in the order dated 20th January, 2020:
"It is apparent that the reference in the question to revisional court may
be erroneous as the rejection of the plaint was carried by way of an
appeal by the plaintiff and the appellate court reversed the rejection.
There are several judgments which are of relevance in the context,
including the judgments reported at (2005)2 WBLR (Cal) 296; AIR 1970
SC 1; 2006 (2) CLJ 180; 1980 (2) CLJ 161 and 2016 (2) CHN (Cal) 49.
The question is of some importance and there are several views floating
in the form of divergent orders. In order that a consistent practice is
followed hereinafter, it is necessary to conclusively answer the principal
issue raised and some others in the periphery. Let a notice be issued to
the President of the Bar Association for the Bar Association being
represented in course of the reference, if interested. The Bench also
requests Mr. Bhaskar Ghosh, Senior Advocate, to assist the court to
answer the reference."
9. This matter has been assigned to this bench on 2nd November,
2022.
10. In the reference, the State is represented by the learned Advocate
General, Mr. Bhaskar Ghosh, Sr. Advocate as amicus, Mr. Probal
Mukherjee, Sr. Advocate on behalf of Corporation and Mr. Sounak
Bhattacharyya on behalf of School.
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11. Mr. Soumendra Nath Mookherjee, Advocate General appearing on
behalf of the State has submitted that the reference must be answered in
the affirmative.
12. This is for the following reasons:
a) An order of a Court rejecting a plaint is deemed to be decree within
the meaning of Section 2(2) of the Code of Civil Procedure, 1908(CPC).
This is clear from a plain reading of Section 2(2) of the CPC which
provides as follows:
2. In this Act, unless there is anything repugnant in the subject or
context,
(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
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adjudication completely disposes of the suit. It may be partly preliminary
and partly final". (emphasis supplied)
b) An order rejecting a plaint passed by a court of the first instance
being a decree, a first appeal against such order would lie under section 96
of the CPC.
c) However, an order refusing to reject a plaint passed by the Trial
Court would not be a decree within the meaning of Section 2(2) of the CPC.
Therefore, such order would not be appealable under Section 96 of the CPC.
An order refusing to reject a plaint would also not be appealable under
Section 104 or Order 43 Rule 1 of the CPC. Since no appeal lies against
such an order, a revisional application under section 115A of the CPC may
be made against such an order on satisfying the requirements of the
provision.
d) If the Court while deciding the revisional application under Section
115A reverses the order of the Trial Court and thereby rejects the plaint,
such an order would amount to a decree within the meaning of Section 2(2)
of the CPC. Furthermore, such an order passed in revision would be
considered as an order passed by a superior court in exercise of its general
appellate jurisdiction.
e) Therefore, an order passed under Section 115 of the CPC rejecting a
plaint would tantamount to a decree passed in appeal.
f) Section 100 of the CPC provides a remedy of filing a second appeal
to the High Court from "every decree passed in appeal" by any Court
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subordinate to the High Court, if the High Court is satisfied that the case
involves a substantial question of law.
g) Hence, it can be said that the remedy lies by filing Second Appeal to
the High Court, if the Revisional Court reverses the order of the Trial Court
refusing to reject the plaint.
13. The learned Advocate general has relied upon the following
decisions in support of his submission:
i) Suraj Mull Gouti v. Sumati Gouti & Ors., reported in 2005(2)
WBLR (Cal) 296 at paragraphs 6 to 10
ii) Shankar Ramchandra Abhyankar v. Kirishnaji Dattaraya
Bapat, reported at AIR 1970 SC 1.
iii) Amal Chandra Mondal v. Anita Biswas & Anr., reported at 2006
(2) Cal LJ 180 at paragraphs 3 to 5, 21 to 24
iv) Uttam Chand Surana v. Prabir Guha, reported at 2016(2) CHN
(Cal) 49 at paragraphs 6 to 16
v) Annapurna Dassi v. Sarat Chandra Bhattacharjee, reported at 38
CWN 1063
vi) Bibhas Mohan Mukherjee & Ors. v. Hari Charan Banerjee & Ors.,
reported at AIR 1961 Cal 491 at paragraphs 7, 16 and 19.
14. Mr. Advocate General has submitted that an identical issue came
up for consideration in Suraj Mull Gouti (supra). The learned Trial Court
held the suit to be maintainable. A revisional application was preferred
against the said order. The Revisional Court held that the suit was not
maintainable and thereby dismissed the suit. Before the Hon'ble Division
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Bench the question arose whether a second appeal would lie from the order
of the Revisional Court and in deciding the said issue it was held that the
order of the Revisional Court dismissing the suit would be a decree under
Section 2(2) of the CPC and the order passed by the Revisional Court would
be considered to have been passed by the first appellate court below,
notwithstanding the fact that such finding was arrived at not in an appeal
but in exercise of power of revision. On such reasoning the court held that a
regular second appeal would be maintainable.
15. Mr. Advocate General has also referred to the observation made
by the Hon'ble Supreme Court in Shankar Ramchandra Abhyan Kar vs.
Kirishnaji Dattaraya Bapat reported at AIR 1970 SC 1 in order to
emphasise that the jurisdiction exercised under Section 115 of the CPC is a
part of the general appellate jurisdiction.
16. Mr. Advocate General has submitted that the Learned Single
Judge in the order dated 11th December, 2017 has placed reliance on the
decision in Surajmal Jain (supra) to say that the said decision presents a
conflicting view in the present case.
17. It is submitted that the said judgment may not be considered to
be relevant for the following reasons:
i. The said decision was not concerned with the question of
whether an order rejecting a plaint under Order 7 Rule 11 of the
CPC was appealable.
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ii. The said case was only concerned with Order 21 Rule 103 of the
CPC.
iii. The said case did not lay down any proposition that orders
passed under Order 21 Rule 103 which are deemed to be
decrees, would not be appealable under Section 96 or Section
100 of the CPC. The said case was only concerned with the
classification of such an appeal.
18. On the basis of the aforesaid submission it is contended that the
decision in Surajmal Jain (supra) is in no manner in conflict with the
position that an order passed by a revisional court rejecting the plaint would
be a decree and thus, second appeal would lie therefrom. It has been
pointed out by the learned Advocate General that the said decision was duly
distinguished on similar grounds in Uttam Chand Surana (supra) at
paragraphs 11 to 13.
19. Mr. Bhaskar Ghosh, learned Senior Counsel has submitted that
the argument of the learned Advocate General is required to be accepted. It
is an accepted principle of law as clearly laid down almost 60 years back by
the Full Bench in Bibhash Mohan Mukherjee & ors. (supra) that the
remedy available to an aggrieved party being dissatisfied with the order of
the 1st Appellate Court in reversing the judgment of the trial court and
thereby restoring the suit, a second appeal would lie under Section 100
CPC. Mr. Ghosh has submitted that Surajmal Jain (supra) is essentially a
case relating to adjudication under Order 21 Rule 58 CPC and Order 21
Rule 98 and 100 of CPC. The issue was whether an appeal arising out of an
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adjudication in such proceedings require admission under Order 41 Rule 11
of the Code of Civil Procedure.
20. Mr. Ghosh submits that three judgments referred by Justice
Tandon would be relevant in considering the reference as they are arising
out of an order passed under Order 7 Rule 11 CPC. They are:
1. Suraj Mull Gouti vs. Sumati Gouti & Ors.; 2005(2) WBLR (Cal) 296
2. Amal Chandra Mondal Vs. Anita Biswas & Ors.; 2006 (2) CLJ 180
3. Uttam Chand Surana Vs. Prabir Guha; 2016 (2) CHN Cal 49
21. Mr. Ghosh has submitted that the decision of the full Bench in
Bibhas Mohan Mukherjee (supra) is a clear authority for the proposition
that the second appeal would lie and the reference is to be answered in the
affirmative. It is submitted that in the said decision, it has been clearly held
that if the order of dismissal amounts in law to be an order rejecting the
plaint under Order 7 Rule 11, it is appealable as a "decree" within the
meaning of Section 2(2) CPC.
22. Mr. Ghosh in this regard, has specifically referred to the
observation of Justice P.N. Mookherjee in paragraph 19 of the decision.
23. Mr. Ghosh has also referred to the decision of the Hon'ble
Supreme Court in Shamsher Singh vs. Rajinder Prashad & Ors.,
reported in AIR 1973 SC 2384, paragraph 3, in support of his submission
that an order rejecting a plaint under Order 7 Rule 11 CPC is appealable as
a decree and when the order is reversed in appeal a second appeal would lie
under Section 100.
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Submission made by Mr. Sounak Bhattacharyya on behalf of the
School.
24. Mr. Sounak Bhattacharyya appearing on behalf of the School has
submitted that the factual matrix of the Division Bench judgments in Suraj
Mull Gouti (supra) and Amal Chandra Mondal (supra) are quite different
from the factual matrix of the present Civil Revisional Application.
25. It is submitted that although there may be difference of opinion
expressed in the said Division Bench judgments but in the given facts and
circumstances there was no requirement for a reference to the Special
Bench. It is submitted that in Suraj Mull Gouti (supra) the first
miscellaneous appeal was directed against an order dated 6th August, 2004
passed by the Additional District Judge, 13th Court, Alipore, 24-parganas
(South) in Civil Revision Case No. 304 of 2001 thereby setting aside Order
No. 17 dated 11th May, 2001 passed by the Learned Civil Judge, 2nd Court,
Junior division, Sealdah in Title Suit No. 619 of 2000.
26. In the suit, the respondents took a preliminary objection that the
suit was not maintainable. The learned Trial Judge by an order dated 11th
May, 2001 held that the suit was maintainable.
27. Being dissatisfied, the respondents preferred a revisional
application under Section 115(A) of the Code of Civil Procedure before the
learned Revisional Court below and by the order impugned in the said
Revisional Court had arrived at a conclusion that the suit is not
maintainable and accordingly dismissed the suit.
28. Being dissatisfied, a First Miscellaneous Appeal was filed.
29. In Amal Chandra Mondal (supra) the plaintiff/appellant filed a
Title Suit No. 52 of 2002 in the Court of the learned Civil Judge, Junior
Division, Bongaon against the defendants/respondents praying for a decree
declaring the right, title and interest of the appellant in the suit property
and for permanent injunction restraining the respondents from entering the
suit property and from disturbing the peaceful possession of the appellant in
the suit property. It appears that the defendants-respondents are the two
daughters of the plaintiff. The plaintiff/appellant has alleged that the
plaintiff purchased two adjacent plots of Bastu land in the name of his wife
in the years 1973 and 1978 and the plaintiff had built a pucca dwelling
house on the said land and that the plaintiff's wife was only a 'Benamdar'
but the actual owner of the property is the plaintiff himself. The plaintiff has
further alleged that the defendants-respondents, sometime in the year 2002,
tried to enter into the plaintiff's property and declared that they are the
present owners of the suit property having purchased the same from their
mother. The plaintiff has alleged that the deeds through which the
defendants are claiming title to the suit property are forged deeds and that
the plaintiffs wife, who was suffering from cancer at the material time, was
not at all in a position to execute any such deeds, the plaintiff has
challenged such deeds through which the defendants are claiming title to
the suit property.
30. The learned trial Court by an order dated 27th February, 2002
granted an ad-interim order of injunction directing the defendants not to
interfere with the present position of the suit property and not to disturb the
status quo position as regards the possession, user and nature and
character of the suit property till the disposal of the injunction-petition. It
appears that the defendants-respondents filed a petition alleging that the
suit filed by the plaintiff/appellant is not maintainable on various grounds
and prayed for hearing of the said petition and also for dismissal of the said
suit on the ground of non-maintainability. The learned Trial Court by an
order dated 17th March, 2003 decided the question of maintainability as a
preliminary issue and held that the suit is maintainable.
31. The defendants challenged the said order by filing a civil revision
being C.R. No. 49 of 2003. The learned Additional District Judge, by an
order dated February 27, 2004 allowed the said civil revision and set aside
the order dated 17.03.2003. Being aggrieved the plaintiff filed an application
under Article 227 of the Constitution of India (C.O. No. 703 of 2004) in this
Court.
32. Mr. Bhattacharyya submits that on a conjoint reading of both the
judgments, it appears that the connected suits were held to be maintainable
by the Learned Trial Judge. Thereafter, a civil revisional application was
preferred under Section 115A of CPC before the Learned District Judge. The
question arose before both the Hon'ble Division Benches as to whether a
second appeal or a second miscellaneous appeal would lie before the Hon'ble
High Court from the order of the Learned District Judge.
33. Therefore, the facts of the said two judgments are quite different
from the facts of the present revisional application before this Special
Bench. In the present case, the suit was dismissed under Order 7 Rule 11(d)
of CPC on the ground of non-maintainability without framing any issue and
recording any evidence. The first Appellate Court reversed the judgment of
the trial court on a preliminary point of maintainability, restored the suit
and remanded the suit to the Trial Court in exercise of its power under
Order 41 Rule 23 of CPC to be decided on merits. An order passed by the
first Appellate Court in exercise of the power under Order 41 Rule 23 is
appealable in terms of Order 43 Rule 1(u) of CPC. When the first Appellate
Court had disposed of the appeal on the preliminary point of maintainability
or jurisdiction of civil court without going into the merits of the suit and
remanded the suit for trial before the Learned Trial Judge, it has certainly
exercised its power under Order 41 Rule 23 of the Civil Procedure Code. An
order under Order 41 Rule 23 of Civil Procedure Code is appealable in terms
of Order 43 Rule 1(u) and a first miscellaneous appeal will lie from such an
order.
34. When an application under Order 7 Rule 11(d) of the Code of
Civil Procedure is allowed by the Ld. Trial Judge and the suit is dismissed
and the said order is affirmed by the First Appellate Court, the order of the
First Appellate Court assumes the character of the decree in terms of
Section 2(2) of the Code of Civil Procedure and a Second Appeal will lie from
such a decree.
35. Mr. Probal Mukherjee learned Sr. Advocate representing the
Corporation has submitted that an appeal arising out of an order rejecting a
plaint being a deemed decree is appealable as first appeal under Section 96
of the Code of Civil Procedure. However, when a Revisional Court rejects a
plaint, in substance, an application filed under Order 7 Rule 11 is being
allowed. Under such circumstances, the remedy by way of a writ petition
under Article 227 of the Constitution could be availed, although, if the plaint
had been rejected by the trial court i.e. court of original jurisdiction, it would
have resulted in a right of appeal under Section 96 CPC per Justice B. N.
Nagarathna in Frost International Limited vs. Milan Developers &
Builders Private Limited; 2022(8) SCC 633 (paragraph 31).
36. Mr. Mukherjee has submitted that if the order passed is a decree
or a deemed decree under law no revision lies under Section 115 of the Code
of Civil Procedure in view of the specific bar under Section 2(2) thereof and it
is only appealable under Section 96 read with Order 41 of the Court. What
is to be seen is the effect of the order and not the process by which a
decision is arrived at as held in Rishabh Chand Jain & Anr. vs. Ginesh
Chandra Jain reported in 2016(6) SCC 675 and 678.
37. Mr. Mukherjee submits that in Sameer Singh & Anr. vs. Abdul
Rab & Ors., reported in 2015 (1) SCC 379 and 384 the Hon'ble Supreme
Court has held an order passed under Order 21 Rules 98 to 100 CPC is a
decree as per the provisions contained under Order 21 Rule 103 CPC and,
therefore, an appeal would lie and a writ petition challenging such order was
not maintainable.
38. Order 21 Rule 101 provides for the determination of necessary
issues. Rule 103 clearly stipulates that when an application is adjudicated
upon under Rule 98 or Rule 100 the said order shall have the same force as
if it were a decree. Thus, it is a deemed decree. If a court declines to
adjudicate on the ground that it does not have jurisdiction, the said order
cannot be elevated to the status of a decree.
39. Mr. Mukherjee has relied upon the decision of the Hon'ble
Supreme Court in Rajni Rani vs. Khairati Lal, reported in 2015(2) SCC
682 at page 687 to show the essential elements of a decree and to
emphasise that when there is a conclusive determination of rights of parties
upon adjudication, the said decision in certain circumstances can have the
status of a decree. If the definition of a decree is appropriately understood it
conveys that there has to be a formal expression of an adjudication as far as
that court is concerned. When an order is final determining the rights of the
parties it will fall within the definition of a decree under Section 2(2) read
with Section 47 and would be an appealable order.
40. Mr. Mukherjee has also referred to the decision of the Hon'ble
Supreme Court in Mangluram Dewangan vs. Surendra Singh, reported in
2011(12) SCC 773 at page 780 to show the nature of the order which can
be considered to be a decree under Section 2(2) of the Code. The said
judgment was also relied upon to show the difference between a "decree"
appealable under Section 96 and an "order" appealable under Section 104
as stated in paragraph 12 of the said judgment.
41. Mr. Mukherjee submits that the said decision has authoritatively
held the nature of order that would pass the test of a "decree" or an order.
42. Mr. Mukherjee has submitted that a party aggrieved by any
appellate judgment and order arising out of the deemed decree of rejection of
plaint, has a recourse by way of second appeal under Section 100 of the
Code of Civil Procedure, 1908 since such appellate order, reversing or
affirming conclusively, decides a lis finally and hence a 'decree' within the
meaning of Section 2(2) of the Code of Civil Procedure, 1908.
43. The reference along with peripheral issues are required to be
answered on appreciation of the scope and effect of Section 2(2) of CPC
along with related sections namely, Sections 96, 100 and 104 read with
Order 41 Rule 1 and Order 43 CPC. The Code has clearly defined the decree
in Section 2(2) to include determination on any preliminary matter and the
said definition is extended to an order rejecting a plaint although it may not
be a decision on merits and the rights of the parties are being not
adjudicated finally. However, it would still be considered as a decree by
reason of Section 2(2) C.P.C and hence would be appeable under section 96
CPC as an appeal from original decree. It is treated as decree as the effect of
the order is non-denial of the reliefs and virtually dismissal of the suit. It is
a decree as, obviously, "it amounts to a refusal of any relief to the plaintiff in
the particular suit and thus decides the familiar issue, always involved in a
suit, namely, whether the plaintiff is entitled to any relief therein, against
the plaintiff" per Lahiri, Chief Justice in Bibhas Mohan Mukherjee (supra).
44. This has been very lucidly and succinctly stated by Hon'ble
Justice P.N. Mookherjee in His Lordship's concurrent judgment in Bibhas
Mohan Mukherjee (supra) in paragraph 19:
"19. Even otherwise, that is, treating the order in question as one of
dismissal of the suit, as distinguished from an order of mere rejection of the
plaint, it will, in my opinion, still be a decree, as, obviously, it amounts to a
refusal of any relief to the plaintiff in the particular suit and thus decides the
familiar issue, always involved in a suit, namely, whether the plaintiff is
entitled to any relief therein, against the plaintiff. The dismissal, therefore,
would be a decree within the main part of the definition section, Section 2(2),
of the Code also. I do not think that the above view would be opposed to any
of the recognised decisions under Section 2(2) of the Code, provided the
distinction is borne in mind that what is held here to be the "decree" is not the
order, -- the interlocutory order, as it may well be termed without impropriety, -
- deciding the issue of court-fee (and valuation), but the ultimate or final
dismissal of the suit and that dismissal which, under the law, disposes of that
particular suit, may well be held to be a decree, though the decision on a
particular issue, as distinguished from the dismissal of the suit, obviously
stands on a different footing and has quite rightly, more often than not, been
differently construed, and provided, further, it is remembered that dismissal of
the suit for non-payment of court-fee is not a "dismissal for default", which is
excluded, -- and expressly excluded, -- from the definition of "decree" under
Section 2(2) of the Code, as such dismissal of the suit is not, in my opinion,
"'an order' of dismissal for default" within the meaning of the said section and
must always be distinguished and kept distinct and separate from the same."
(emphasis supplied)
45. The definition of "decree" in Section 2(2) "shall be deemed to
include the rejection of a plaint".
46. The word "deemed" is used in modern legislations in different
senses and not always for the purpose of creating a fiction but at times to
accommodate which is obvious. The rejection of a plaint has the natural
consequence of the claims and reliefs being denied. The rejection of plaint is
thus presumed to be a decree for the purpose of deciding the remedy
available to the plaintiff under the Code. The scope and ambit of decree and
the remedies available under the code against a decree and order have been
succinctly explained in Mangluram Dewangan v. Surendra Singh & Ors.,
2011(12) SCC 773 [paragraphs 11 to 14 and 25]. It is stated thus:
"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).
(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.
25. If the court orders that suit has been abated or dismissed the suit as
having abated, as a consequence of rejection of an application under
Order 22 Rule 3 of the Code, as noticed above, there is no determination
of rights of parties with regard to any of the matters in controversy in
the suit and therefore the order is not a decree. But if an order declares
that the suit has abated, or dismisses a suit not as a consequence of
legal representatives filing any application to come on record, but in
view of a finding that right to sue does not survive on the death of sole
Plaintiff, there is an adjudication determining the rights of parties in
regard to all or any of the matters in controversy in the suit, and such
order will be a decree".
47. Now the issue arises when the first appellate court either affirms
the order rejecting the plaint or reverses the order thereby restoring the suit
to be tried on merits, what would be the remedy available to an aggrieved
party. It is in effect an order of remand under Order 41 Rule 23. An order
remanding the suit to be tried on merits is however, appealable under Order
43 Rule 1(u) of the Code of Civil Procedure and is to be classified as a First
Miscellaneous Appeal but is required to be admitted on a substantial
question of law under Section 100 read with Order 41 Rule 11 CPC. In
Narayanan v. Kumaran & Ors., reported in 2004(4) SCC 26 this was
explained in paragraph 17:
"17. It is obvious from the above rule that an appeal will lie from an order of
remand only in those cases in which an appeal would lie against the decree
if the Appellate Court instead of making an order of remand had passed a
decree on the strength of the adjudication on which the order of remand was
passed. The test is whether in the circumstances an appeal would lie if the
order of remand where it is to be treated as a decree and not a mere order. In
these circumstances, it is quite safe to adopt that appeal under Order 43 Rule
(1) Clause (u) should be heard only on the ground enumerated in Section 100.
We, therefore, accept the contention of Mr. T.L.V. Iyer and hold that the
appellant under an appeal under Order 43 Rule (1) Clause (u) is not entitled
to agitate questions of facts. We, therefore, hold that in an appeal against an
order of remand under this clause, the High Court can and should confine
itself to such facts, conclusions and decisions which have a bearing on the
order of remand and cannot convass all the findings of facts arrived at by the
Lower Appellate Court."
48. This was clarified in Jegannathan v. Raju Sigamani & Anr.,
reported in 2012(5) SCC 540 in paragraph 11 which reads:
"11. The High Court relied upon a decision of this Court in the case
Narayanan v. Kumaran and Ors. (2004) 4 SCC 26 in holding that Civil
Miscellaneous Appeal from the order of remand was not maintainable. The
High Court was clearly in error. What has been held by this Court in
Narayanan is that an appeal under Order 43 Rule 1 Clause (u) should be
heard only on the ground enumerated in Section 100 of the Code. In other
words, the constraints of Section 100 continue to be attached to an appeal
under Order 43 Rule 1(u). The appeal under Order 43 Rule 1(u) can only be
heard on the grounds a second appeal is heard under Section 100."
49. In Shamsher Singh (supra) a preliminary objection was raised
by the defendant/appellant that the suit was not properly valued for the
purposes of court fees and jurisdiction. The Trial Court decided it as a
preliminary issue and rejected the plaint as the revised court fees
determined by the Trial Court was not put in by the plaintiff. This order was
carried in appeal. The High Court allowed the appeal. The appellant
preferred an appeal by Special Leave. This was opposed on the ground that
whether proper court fees has been paid on a plaint is primarily a question
between the plaintiff and the State and that the defendants who may believe
and even honestly that proper court fees has not been paid by the plaintiff
has still no right to move the superior courts by appeal or in revision against
the order adjudging payment of court fee payable on the plaint. In declining
to accept the said objection the Hon'ble Court held:
"In the present case the plaint was rejected under Order 7, Rule 11 of
the C.P.C such an order amounts to a decree under Section 2(2) and
there is a right of appeal open to the plaintiff. Furthermore, in a case in
which this Court has granted special leave the question whether an
appeal lies or not does not arise. Even otherwise a second appeal would
lie under Section 100 of the C.P.C. on the ground that the decision of the
1st Appellate Court on the interpretation of Section 7(iv) (c) is a question
of law. There is thus, no merit in the preliminary objection." (emphasis
supplied)
50. The right of revision in terms of the West Bengal Amendment can
be exercised by the High Court as well as the District Court. The said power
is exercised in the following situation:
i. Where the court have exercised its jurisdiction not vested in it
by law or;
ii. The court had failed to exercise a jurisdiction so vested or;
iii. The court has exercised a jurisdiction illegally or with material
irregularity.
51. The words 'illegality' and 'with material irregularity' as used in
the said clause was explained in Tek Singh v. Shashi Verma reported in
2019(16) SCC 678 to mean that "they would not cover either errors of fact
or of law; they do not refer to the decision arrived at but merely to the
manner in which it is reached". The errors contemplated by this clause may,
"related either to breach of some provision of law or to material defects of
procedure affecting the ultimate decision, and not to errors either of fact or
of law, after the prescribed formalities have been complied with."
52. In Suraj Mull Gouti (supra) the revisional court in exercise of its
power under Section 115(A) held that the suit was not maintainable and
accordingly dismissed the suit. We assume that the revisional application
was filed as the trial court refused to allow the rejection of the plaint and it
is not an appealable order. The remedy by a revision was availed of since the
trial court had failed to exercise its jurisdiction in deciding the matter in
favour of the plaintiff and the revisional court exercised its jurisdiction and
thereby dismissed the suit. This power was exercised in terms of Section
115A as amended.
53. The Division Bench was essentially considering an objection with
regard to the classification of the appeal. The appeal was originally classified
as a First Miscellaneous Appeal. The Hon'ble Division Bench had proceeded
on the basis that the power of revision under Section 115 of the Code of Civil
Procedure is in reality exercised by a superior court as part of general
appellate jurisdiction per Justice A.N. Grover in Shankar Ramchandra
Abhyankar v. Krishnaji Dattatreya Bapat reported in AIR 1970 SC 1. In
Skankar Ramchandra (supra) at paragraph 6 this issue was addressed. It
states:
"6. Now when the aid of the High Court is invoked on the revisional side
it is done because it is a superior court and it can interfere for the
purpose of rectifying the error of the court below. Section 115 of the CPC
circumscribes the limits of that jurisdiction but the jurisdiction which is
being exercised is a part of the general appellate jurisdiction of the High
Court as a superior court. It is only one of the modes of exercising power
conferred by the statute; basically and fundamentally it is the appellate
jurisdiction of the High Court which is being invoked and exercised in a
wider and larger sense. We do not, therefore, consider that the principle
of merger of orders of inferior Courts in those of superior Courts would
be affected or would become inapplicable by making a distinction
between a petition for revision and an appeal." (emphasis supplied)
54. The Hon'ble Division Bench on the basis of the aforesaid
observation has concluded that the same principle would apply to a
proceeding under Section 115(A) of the Code. The Division Bench observed
thus:
"8. It is true that an affirmative finding on a question of maintainability
of a suit does not amount to decree within the meaning of Section 2(2) of
the Code and as such, the Defendant preferred a revisional application
before the learned District Judge but the said Revisional Court having
reversed such finding and come to the conclusion that the suit is not
maintainable, such order amounts to decree. The order impugned
herein, therefore, should be held to be a decree passed by the first
appellate Court below, notwithstanding the fact that such finding was
arrived at not in an appeal but in exercise of power of revision.
9. We, therefore, find substance in the contention of Mr. Roy Chowdhury
that this appeal should be classified as a regular second appeal. Since,
we have determination to hear second appeal only at the stage of
hearing Order 41 Rule 11 of the Code and in this case, this appeal had
already been admitted by a different Division Bench under Order 41
Rule 11 of the Code after keeping the question of classification of appeal
open for final decision, we cannot hear out this second appeal on merit
as contested one at the final hearing stage." (emphasis supplied)
55. In Frost International Limited (supra) referred to by Mr. Probal
Mukherjee, Senior Advocate a similar situation as that of Suraj Mull Gouti
(supra) had arisen. The Trial Court refused to reject the plaint and the
revisional court allowed the revision petition and rejected the plaint. The
decision of the revisional court was challenged in the High Court by way of a
revision. In the said decision in paragraph 29.2 reference was made to Tek
Singh (supra) where the bench speaking through Justice Nariman while
discussing Section 115 and its proviso held that revision petitions filed
under Section 115 CPC are not maintainable against interlocutory orders.
The jurisdiction under section 115 CPC is essentially exercised to correct
jurisdictional errors.
56. The said paragraphs would give an impression that it is the
nature of the jurisdiction that was to be taken into consideration in deciding
the remedy.
57. It is sought to be argued that once the order impugned is a
'decree' or a "deemed decree" the remedy provided under the Code should
follow. Moreover, there is a clear distinction between the power exercised by
an appellate court and a revisional court. The revisional jurisdiction is
correctional in nature and does not contemplate a revisional decree unlike
an appellate court which by virtue of Order 41 Rule 33 can pass any decree
and make any order which ought to have been passed by the trial court
exercising original jurisdiction. The CPC does not contemplate a revisional
court to pass a decree in exercise of its revisional jurisdiction. In view of
Shankar Ramchandra Abhyankar (supra) it was contended that the
jurisdiction exercised by the revisional court in rejecting a plaint is a decree
within the meaning of Section 2(2) CPC and the jurisdiction so exercised by
the revisional court is part of the general appellate jurisdiction.
58. There cannot be any doubt that unlike the revisional Court the
appellate court has a co-extensive power of the trial court [See. T.N. Alloy
Foundry Co. Ltd. Vs. T.N. Electricity Board and Ors., reported in 2004(3)
SCC 392] and the trial court if allowed an application for rejection of the
plaint it would be an appealable decree under Section 96 CPC. This appellate
power permits the appellate court to pass, inter alia, a decree.
59. In Frost International Limited (supra) the following points were
formulated for consideration in paragraphs17.1 and 17.2:
"17.1 (a) Whether the High Court was justified in setting aside the order
passed by the revisional court in C.R.P. No. 5 of 2012 and thereby
remanding the matter to the said court for reconsideration on the premise
that the revisional court had exceeded its jurisdiction in rejecting the
plaint?
17.2 (b) What order?"
60. However, in discussing the remedy available to a party where the
Revisional Court dismissed the plaint, it was observed in paragraphs 31 and
32:
"31 No doubt rejection of a plaint is a decree within the meaning of
Section 2(2) of Code of Civil Procedure and an appeal lies from every
decree passed by any court exercising original jurisdiction to the Court
authorised to hear appeals from a decision of such court. However, it
must be borne in mind that when a revisional court rejects a plaint, in
substance, an application filed Under Order VII Rule 11 is being
allowed. Under such circumstances, the remedy by way of a writ
petition Under Article 227 of the Constitution could be availed and
Respondent No. 1/Plaintiff has resorted to the said remedy in the
instant case; although if the plaint had been rejected by the trial court
i.e. court of original jurisdiction, it would have resulted in a right of
appeal Under Section 96 of Code of Civil Procedure.
32. Having regard to the second proviso to Section 115 of Code of Civil
Procedure (Orissa amendment), a revisional court while allowing the
application filed Under Order VII Rule 11 of Code of Civil Procedure
would in substance reject the plaint but since the said decree is not
passed by the court of original jurisdiction, namely the trial court, the
remedy by way of writ petition Under Article 227 of the Constitution
would be available to the aggrieved party and Respondent No. 1 has
availed the said remedy." (emphasis supplied)
61. The amendment of Section 115 in Orissa is in pari materia with
the West Bengal Amendment and the scope, ambit, width and power of the
revisional court was considered in Frost International Limited (supra). In
fact the counter argument in support of lack of jurisdiction of the revisional
court to pass a decree was negatived in Frost International Limited (supra)
on interpretation of Section 115 (as amended) as is clearly evident from
paragraph 32 of the said judgment. In fact the judgment of Justice
Biswanath Rath in Milan Developers and Builders (P) Ltd. v. Frost
International Limited; 2016 SCC Online Ori 1051 to the effect that "the
Revisional Authority has a limited role in the matter of hearing on rejection of
an application under Order 7 Rule 11 of CPC and in the event, it feels that
there is some substance in considering the application under Order 7 Rule 11
of CPC, then the Revisional Authority is to remit the matter back to the Original
Authority for fresh consideration of the matter" was not accepted by the
Hon'ble Supreme Court.
62. The said decision affirms the power of the Revisional Court to
decide an application for rejection of plaint although allowing such an
application would be a 'deemed decree' under Section 2(2) of the CPC. If
such a jurisdiction is vested with the revisional court which it has in view of
Frost International Limited (supra) notwithstanding such a decision being
a 'deemed decree' is assailable in a writ petition under Article 227 of the
Constitution of India. Justice Tandon possibly has this in mind while
making the reference.
63. The decision in Shankar (supra) was followed in Suraj Mull
Gouti (supra). We are of the opinion that the view expressed in Suraj Mull
Gouti (supra) is no more a good law in view of Frost International Ltd.
(supra). However, I do not find any conflict between Surajmal Jain (supra)
and Suraj Mull Gouti (supra). The said decision has been distinguished on
similar grounds in Uttam Chand Surana (supra) in paragraphs 11 to 13
which read:
"11. Their Lordships held that the appeal which is directed against an
order passed under Order 21 Rule 103 of the Code of Civil Procedure
amounting to a deemed decree is different from an appeal which is
directed against the decree within the meaning of "decree" as per
section 2(2) of Civil Procedure Code. Their Lordships thus held that an
appeal against a deemed decree should be registered as a
Miscellaneous Appeal.
12. While deciding the issue regarding the nomenclature of such an
appeal which is directed against an order under Order 21 Rule 103 of
the Code of Civil Procedure, the said Division Bench of this Hon'ble
Court had no occasion to consider as to how an appeal which is directed
against an order of rejection of plaint under Order 7 Rule 11 of the Code
of Civil Procedure, will be classified.
13. Since the expression "decree" to some extent is different from the
expression "deemed decreed", we feel that the decision of the said
Division Bench cannot be regarded as a direct authority on the present
issue."
64. I agree with the learned Advocate General in this regard and
further observe that it was with regard to classification of an appeal arising
out of an order under Order 21 Rule 103 CPC and not with regard to the
remedy.
65. Thereafter the issue was resolved with reference to an earlier
decision of this court as would appear from the following paragraphs:
"14. While considering such an issue, we have got a direct authority on
this point. In an identical situation, a question came up for consideration
as to whether an order of rejection of plaint can be assailed in a regular
appeal or it can be challenged by way of revisional application under
section 115 of the Code of Civil Procedure.
15. While considering such an issue, the Division Bench of this Hon'ble
Court, after considering the nature of the order which is passed under
Order 7 Rule 11 of the Code of Civil Procedure and the definition of
"decree" as defined under section 2(2) of the Code of Civil Procedure
conclusively held in the case of Smt. Annapurna Dassi & Ors. vs. Sarat
Chandra Bhattacharjee & Ors. reported in 38 CWN page 1063 that
when an order is passed under Order 7 Rule 11 of the Code of Civil
Procedure and an appeal preferred therefrom is dismissed by the
Learned First Appellate Court, such an order of the First Appellate Court
is assailable before the High Court in Second Appeal. Their Lordships
held that such an order is not assailable before this court under section
115 of the Civil Procedure Code, as it stood in the Civil Procedure Code
at the relevant time. Though the Civil Procedure Code has been
amended subsequently changing the scope of revisional jurisdiction of
this Court under section 115 of the Civil Procedure Code but still then
when we find that an order of rejection of the plaint amounts to a decree
within the meaning of "decree" as it is defined under section 2(2) of the
Civil Procedure Code, we by relying upon the said decision of the
Division Bench of this Hon'ble Court in the case of Annapurna Dassi &
Ors. vs. Saral Chandra Bhattacharje & Ors. (supra), hold that the
present appeal should be classified as a regular Second appeal."
(emphasis supplied)
66. However, I must hasten to add that although the points
formulated in this reference is different from the issues raised in Frost
International Limited (supra), in deciding the issues as framed in
paragraph 17.1 (a) and 17.2(b), the Hon'ble Supreme Court in Paragraph 32
has clearly stated that when the reviaional court is allowing an application
under Order 7 Rule 11 CPC in substance it is a decree passed by the
revisional Court, however, as the order of rejection is not by a court of
original jurisdiction the remedy would be by way of a writ petition under
Article 227 of the Constitution. In Frost International Limited (supra) in
fact, the High Court was approached by way of a writ petition under Article
227 and not by way of a second appeal.
67. It thus follows that it is the nature of the jurisdiction that was
emphasised and given predominance, importance and preference over the
nature of the order. The nature of jurisdiction prevailed over the form and
spirit of the order. The decision in Shankar Ramchandra (supra) was not
considered in Frost International Limited (supra) where it has been
decided that the revisional court is part of the general appellate jurisdiction
and in following the said observation in Suraj Mull Gouti (supra) it was held
that the order allowing rejection of plaint should be treated as a 'deemed'
decree and hence a second appeal would be maintainable may not be the
correct law in view of the latest judgment in Frost International Limited
(supra). It may be contended that Shankar Ramchandra (supra) was
rendered in the context of merger of orders. This has been dealt with by
Justice Kausik Chanda in a separate concurring judgment.
68. Under such circumstances we answer the reference in the
negative in view of paragraph 32 of Frost International Limited (supra).
The proper remedy would be to file a writ petition under Article 227 of the
Constitution of India.
69. We record our sincere appreciation for the assistance received
from the learned Advocate General, Mr. Bhaskar Ghosh, Amicus, ably
assisted by Mr. Rwitendra Banerjee, Mr. Probal Kumar Mukherjee, Senior
Advocate and Mr. Saunak Bhattacharjee, Advocate.
(Soumen Sen, J.)
Amrita Sinha J.: I have had the opportunity of perusing the draft
judgment prepared by both my partners in the Bench. I completely concur
with the deduction arrived at.
2. The facts of the case and the various case laws relied upon by the
parties have been deliberated upon by the Bench and, as such, the same is
not repeated.
3. After threadbare discussion of the facts of the case and the points
of law, the Court is of the opinion that if the order of the learned Trial Court
refusing to reject the plaint under Order 7 Rule 11 CPC is reversed by the
Revisional Court, then the order of the Revisional Court will be a "decree"
under Section 2 (2) CPC and in terms of the judgment passed by the Hon'ble
Supreme Court in the matter of Frost International Limited vs. Milan
Developers and Builders Pvt. Ltd. & Another reported in (2022) 8 SCC
633 paragraph 32 the remedy by way of writ petition under Article 227 of
the Constitution would be available to the aggrieved party.
4. Though the issue as to whether a second appeal would lie from an
order allowing application under Order 7 Rule 11 CPC by a Court exercising
Revisional jurisdiction was not directly decided or even argued before the
Hon'ble Supreme Court, but the Court while deciding the issue as to whether
the Revisional Court could have passed order to reject the plaint held that,
rejection of a plaint is undoubtedly a decree within the meaning of Section
2(2) CPC.
5. As appeal lies from every order passed by any Court exercising
original jurisdiction, accordingly, the order passed by the Revisional Court
cannot be the subject matter of an appeal. Remedy is to file writ petition
under Article 227 of the Constitution.
6. The same implies that even though the order passed by the
revisional Court amounts to a decree, no appeal will lie therefrom. Plainly
said, appeal cannot be filed from an order passed by the Court exercising
revisional jurisdiction. Appeal under Section 96 CPC can be filed only from
order passed by the Court exercising original jurisdiction.
(underlined for emphasis)
(Amrita Sinha J.)
Kausik Chanda, J.:- I have read the draft judgment of my
esteemed colleagues, Justice Soumen Sen and Justice Amrita Sinha
and concur with the conclusions arrived at by them. However, I
propose to give my own reasoning.
2. The following question of law has been referred by a learned Single
Judge to this Bench.
"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."
Simply put: whether an appeal would lie against the rejection of a
plaint in the exercise of revisional jurisdiction.
3. This scenario comes to light in a case where the Trial Court
declines to reject a plaint under Order VII Rule 11 of the Code of Civil
Procedure, 1908 (in short, the Code), while the Revisional Court rejects the
plaint by reversing the order of the Trial Court.
4. It is noteworthy that the learned Single Judge made this reference
in relation to a distinct factual scenario where an application under Order
VII Rule 11 had been filed before the Trial Court and the same was allowed.
An appeal was preferred against the said order. The Appeal Court set aside
the order of the Trial Court holding that the Civil Court had the jurisdiction
to adjudicate the dispute and thereby refused to reject the plaint. The said
order of the Appeal Court was challenged before this Court by a civil revision
under Article 227 of the Constitution of India.
5. In dealing with the maintainability of the said revision before this
Court, the learned Judge while making this reference, held that in such a
situation, only a second appeal would lie against the order of the Appeal
Court. The relevant part of the said order of the learned Judge is quoted
below:
"There is hardly any dispute that in view of the
nature of an order passed under Order VII Rule 11
of the Code, more particularly the definition of
"decree" given in Section 2(2) thereof, the appeal lies
before the Appellate Court as such order neither
comes within the peripheral limit of Section 104 nor
under Order XLIII Rule 1 of the Code, but under
Section 96 thereof. It is not always necessary that
the formal decree is to be drawn up if the Code
expressly provides that such order would be a
deemed decree, the appeal can be maintainable
before the appellate forum.
In the instant case the Appellate Court, who is in
seisin of the appeal filed under Section 96 of the
Code, reversed the order of the Court of original
jurisdiction, which is otherwise competent under
the Code of Civil Procedure itself and in view of
Section 100 of the Code an appeal must lie before
the High Court."
6. The learned Judge, however, was of the view that there are
conflicting views on the issue where the Revisional Court rejects a plaint,
whether an appeal would lie against such an order. The learned Judge
deemed it fit to refer the issue to a larger Bench for consideration.
7. The learned Judge observed that Division Benches of this Court
hold conflicting views on this issue as to "whether the nature of the order is
the sole and primary factor to ascertain the remedy available to an aggrieved
person or it would be dependent upon the nature of the proceeding filed
before the Court and the power vested under relevant provisions is
exercised; to be more precise, whether an appeal or revision would be the
remedy if the nature of the order is such which comes within the purview of
the aforesaid provisions of the Code or it is the proceeding itself filed before
the Court would be the guiding factor to decide the remedy to the aggrieved
person."
8. In both the judgments, reported at (2005) 2 WBLR Cal 296 (Suraj
Mull Gouti v. Sumati Gouti) and (2006) 2 Cal LJ 180 (Amal Chandra
Mondal v. Anita Biswas), the Division Benches of this Court concurred
that an appeal will lie if a plaint is rejected by a Revisional Court. There was,
however, a difference of opinion concerning the classification of appeal. In
the case of Suraj Mull Gouti (Supra), it was held that such an appeal
should be treated as a regular second appeal, while in the case of Amal
Chandra Mondal (Supra) it was classified as a first miscellaneous appeal.
9. We may, however, notice another judgment passed in (Uttam
Chand Surana v. Prabir Guha) reported at (2016) 2 CHN Cal 49, where
an order of rejection of the plaint was passed by the Trial Court. In the first
appeal, the order of the learned Trial Judge was upheld which prompted the
plaintiff to prefer a second appeal before this Court. It was held in the said
case also that such an appeal should be classified as a regular second
appeal.
10. In the case reported at (1980) 2 Cal LJ 161 (Surajmal Jain v.
Prabir Kumar Sett), a Division Bench of this Court dealt with the question
as to whether an appeal preferred against an order passed on an application
under Order XXI Rule 97 of the Code should be classified as an "appeal from
original decree" or as an "appeal from order." In paragraph 16 of the said
judgment it was held as follows:
"16. In view of the above position of
law, we conclude that appeals preferred
against orders passed under Rules 98 or 100
of Order 21 of the Code should be classified
as appeals from orders and they are required
to be heard under Order 41, Rule 11 of the
Code of Civil Procedure."
11. As this Bench is confronted with a different situation involving the
rejection of a plaint by a Revisional Court, the Uttam Chand Surana and
Surajmal Jain cases are not relevant to the present reference.
12. The answer to the reference can be traced to the provisions of the
first appeal and second appeal as provided under Section 96 and Section
100 of the Code. The said two provisions are quoted below:
"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 [ten
thousand rupees]."
100. Second appeal-- (1) Save as otherwise
expressly provided in the body of this Code or
by any other law for the time being in force,
an appeal shall lie to the High Court from
every decree passed in appeal by any Court
subordinate to the High Court, if the High
Court is satisfied that the case involves a
substantial question of law.
(2) An appeal may lie under this section
from an appellate decree passed ex parte.
(3) In an appeal under this section, the
memorandum of appeal shall precisely state
the substantial question of law involved in the
appeal.
(4) Where the High Court is satisfied
that a substantial question of law is involved
in any case, it shall formulate that question.
(5) The appeal shall be heard on the
question so formulated and the respondent
shall, at the hearing of the appeal, be allowed
to argue that the case does not involve such
question :
Provided that nothing in this sub-section
shall be deemed to take away or abridge the
power of the Court to hear, for reasons to be
recorded, the appeal on any other substantial
question of law, not formulated by it, if it is
satisfied that the case involves such question.
[emphasis supplied]
13. It bears repeating that the right of appeal is founded on statutory
provisions. Unless the relevant legislation specifically provides for an avenue
of appeal, the right thereof cannot be invoked. The right to appeal can be
hedged with certain conditions. A bare perusal of Section 96 of the Code
elucidates that an appeal shall lie from every decree passed by "any Court
exercising original jurisdiction." In other words, a decree can only be deemed
appealable when it emanates from the exercise of original jurisdiction; a
fortiori, a decree passed outside the realm of original jurisdiction is not
susceptible to appeal. While it remains true that an order passed by a Court
of original jurisdiction or a revisional jurisdiction rejecting an application
under Order VII Rule 11 of the Code qualifies as a deemed decree in view of
the definition of "decree" provided under Section 2(2) of the Code, it must be
noted that such a decree, originating in a revisional jurisdiction rather than
an original jurisdiction, does not warrant an appeal.
14. In a similar vein, Section 100 of the Code provides that an appeal
shall lie to the High Court "from every decree passed in appeal" by any Court
subordinate to the High Court. Consequently, a decree passed in a
revisional jurisdiction cannot be made appealable before this Court as a
second appeal.
15. Whether an appeal or revision would be the remedy depends on
the nature of the order/decree in conjunction with the nature of jurisdiction
in the exercise of which such order/decree has been passed.
16. In fact, the issue at hand has been decisively addressed by the
judgment reported at (2022) 8 SCC 633 (Frost International Limited v.
Milan Developers & Builders Private Limited), where the Supreme Court
upheld the power of Revisional Court to reject a plaint by reversing a
judgment passed by the Orissa High Court.
17. The relevant parts of the said judgment, which in no uncertain
terms resolve the issue at hand in the negative, are excerpted below:
"31. No doubt rejection of a plaint is a decree
within the meaning of Section 2(2)CPC and an
appeal lies from every decree passed by any
court exercising original jurisdiction to the
court authorised to hear appeals from a
decision of such court. However, it must be
borne in mind that when a Revisional Court
rejects a plaint, in substance, an application
filed under Order 7 Rule 11 is being allowed.
Under such circumstances, the remedy by
way of a writ petition under Article 227 of the
Constitution could be availed and Respondent
1/the plaintiff has resorted to the said
remedy in the instant case; although if the
plaint had been rejected by the trial court i.e.
court of original jurisdiction, it would have
resulted in a right of appeal under Section
96CPC.
32. Having regard to the second proviso to
Section 115CPC (Orissa Amendment), a
Revisional Court while allowing the
application filed under Order 7 Rule 11CPC
would in substance reject the plaint but since
the said decree is not passed by the court of
original jurisdiction, namely, the trial court,
the remedy by way of writ petition under
Article 227 of the Constitution would be
available to the aggrieved party and
Respondent 1 has availed the said remedy."
18. Ergo, there cannot be any other option but to respond negatively
to the query posed, considering the authoritative judgment delivered in
Frost International Limited case.
19. Although the judgment in Frost International Limited case was
delivered subsequent to the initiation of this reference, it is, however,
imperative to acknowledge that the view expressed by the learned Single
Judge, while making the reference indeed aligns with the perspective put
forth in Frost International Limited case. The relevant part of the
judgment under reference is quoted below:
"Naturally an order passed by the
District Judge under Section 115A of the
Code is not an appealable one nor a letters
patent appeal lies if such jurisdiction is
exercised by the High Court under Section
115 of the Code. Whether a second revisional
application lies against the order of the
District Judge under Section 115A is yet a
debatable question, but it does not impinge
upon or fetters the power of superintendence
exercised by the High Court under Article 227
of the Constitution of India. The primary
object to exercise of power of superintendence
is to keep all the subordinate Courts within
the precinct or boundaries of law. If the order
is passed under Section 115A of the Code by
the District Judge reversing the order of the
Trial Court having a resultant effect that the
suit is held to be non-maintainable, yet such
order is passed exercising a power conferred
under Section 115A of the Code and in my
opinion the nature of jurisdiction exercised by
the Court below should be the determining
factor for further remedy."
20. It has already been noted that two Division Benches of this Court
arrived at a contrary conclusion in Suraj Mull Gouti case and in Amal
Chandra Mondal case. The determining factor for the said two Division
Benches was the conviction that the revisional jurisdiction is a part of
appellate jurisdiction and, therefore, an order rejecting a plaint by a
Revisional Court effectively represents an order passed in appeal, thereby
justifying the viability of an appeal against such a decision.
21. The relevant passage of Suraj Mull Gouti case is quoted below:
"7. It is now settled law that power of revision
under Section 115 of the Code of Civil
Procedure is in reality exercised by a superior
Court as part of general appellate jurisdiction.
(See Shankar Ramchandra Abhyankar v.
Krishnaji Dattatraya Bapat, reported in AIR
1970 SC 1). Therefore, the same principle will
apply to a proceeding under Section 115(A) of
the Code."
22. The pertinent segment of Amal Chandra Mondal case runs as
follows:
"24. But, it appears that the appellants have
filed the instant second appeal against the
impugned order passed by the learned
Revisional Court below. There cannot be any
dispute that revisional jurisdiction is a part of
the appellate jurisdiction and the learned
Court below passed the impugned order by
exercising revisional jurisdiction which is a
part of the appellate jurisdiction. In such
situation, we are of the view, that the
impugned order should be treated to be a
deemed decree passed by the Court of First
Appeal and accordingly, the appellants
should have filed second miscellaneous
appeal before this Court. We, accordingly,
convert the present second appeal into a
second miscellaneous appeal and we direct
the department concerned to assign an
appropriate number to the said case and
again place the matter for hearing under
Order 41 Rule 11 CPC before the appropriate
Bench. We make it clear that we have decided
only a preliminary point as indicated above."
23. With utmost respect, I must express my inability to embrace such
a perspective. The Division Bench in Suraj Mull Gouti case found its basis
in a judgment reported at AIR 1970 SC 1 (Shankar Ramchandra
Abhyankar v. Kirishnaji Dattaraya Bapat). It is crucial to consider the
contextual underpinning in which the aforesaid judgment was rendered. In
that case, a decree of partial eviction was passed by the Trial Court, and an
appeal ensued, wherein the Appeal Court affirmed that decree. The decree of
the Appellate Court was challenged before the Bombay High Court by filing a
revisional application. A Single Judge of the High Court dismissed the
revisional application which was again challenged by filing a writ petition
under Article 226/227 of the Constitution of India before a Division Bench.
The Division Bench reversed the order of the Single Bench. The said order of
the Division Bench was challenged before the Supreme Court. In the
aforesaid context, the Supreme Court grappled with the inquiry as to
whether the order of the subordinate Court merged with the order of the
High Court passed in revisional jurisdiction. The relevant paragraph of the
said judgment is quoted below:
"3. Now as is well known Section 115 of the
Civil Procedure Code empowers the High
Court to call for the record of any case which
has been decided by any court subordinate to
it and in which no appeal lies to it. It can
interfere if the subordinate court appears to
have exercised the jurisdiction not vested in it
by law or to have failed to exercise the
jurisdiction so vested or to have acted in the
exercise of its jurisdiction illegally or with
material illegality. The limits of the
jurisdiction of the High Court under this
section are well defined by a long course of
judicial decisions. If the revisional jurisdiction
is invoked and both parties are heard and an
order is made the question is whether the
order of the subordinate court has become
merged in the order of the High Court. If it
has got merged and the order is only of the
High Court, the order of the subordinate
court cannot be challenged or attacked by
another set of proceedings in the High Court,
namely, by means of a petition under Article
226 or 227 of the Constitution. It is only if by
dismissal of the revision petition the order of
the subordinate court has not become merged
in that of the High Court that it may be open
to a party to invoke the extraordinary writ
jurisdiction of that court. There again the
question will arise whether it would be right
and proper for the High Court to interfere
with an order of a subordinate court in a writ
petition when a petition for revision under
Section 115 CPC, against the same order has
been dismissed. Such a consideration will
also enter into the exercise of discretion in a
petition under Article 226 or 227.
...
6. Now when the aid of the High Court is
invoked on the revisional side it is done
because it is a superior court and it can
interfere for the purpose of rectifying the error
of the court below. Section 115 of the Code of
Civil Procedure circumscribes the limits of
that jurisdiction but the jurisdiction which is
being exercised is a part of the general
appellate jurisdiction of the High Court as a
superior court. It is only one of the modes of
exercising power conferred by the statute;
basically and fundamentally it is the appellate
jurisdiction of the High Court which is being
invoked and exercised in a wider and larger
sense. We do not, therefore, consider that the
principle of merger of orders of inferior courts
in those of superior Courts would be affected
or would become inapplicable by making a
distinction between a petition for revision and
an appeal."
[emphasis supplied]
24. The Supreme Court ultimately held that the course which was
followed by the High Court, in that case, was certainly one which led to a
conflict of decisions of the same Court.
25. It is essential to distinguish between the notion that an order
passed by a subordinate Court merges with an order passed by a Revisional
Court and the assertion that appeal and revision are the same. The Code
crafts separate and distinct provisions for both appeal and revision. It
cannot be said that the nature of exercise in revisional jurisdiction is the
same as of the appellate jurisdiction. The scope of revision and appeal has
been distinguished in a long line of Supreme Court judgments. [See: (2002)
3 SCC 626 (Harshavardhan Chokkani v. Bhupendra N. Patel), (2003) 6
SCC 659 (Shiv Shakti Coop. Housing Society v. Swaraj Developers),
AIR 1965 SC 1585 (State of Kerala v. K.M. Charia Abdulla and
Company), AIR 1963 SC 698 (Hari Shankar v. Rao Girdhari Lal
Chowdhury), (1965) 1 SCR 601 (State of Kerala v. K.M. Charia Abdulla
and Company), (1980) 4 SCC 259 (Sri Raja Lakshmi Dyeing Works v.
Rangaswamy Chettiar), (2003) 6 SCC 659 (Shiv Shakti Coop. Housing
Society, Nagpur v. Swaraj Developers), (2014) 9 SCC 78 (Hindustan
Petroleum Corporation Limited v. Dilbahar Singh) and (2019) 6 SCC
424 (Karnataka Housing Board v. K.A. Nagamani) ]
26. With due respect, I am of the view that the aforesaid Division
Benches has wrongly applied the proposition of law as laid down in
Shankar Ramchandra Abhyankar (supra) to hold that an appeal will be
maintainable against an order rejecting a plaint passed by a Court in the
exercise of its revisional jurisdiction. The appealability of an order or decree
must be traced exclusively to the relevant provisions of appeal under the
Code.
27. Given the discourse hitherto, I am of the view that where the Trial
Court rejects an application under Order VII Rule 11 and the Revisional
Court reverses the said order by rejecting the plaint, an application under
Article 227 of the Constitution of India will lie, but when such an application
is allowed by the Trial Court and, in appeal, the Appellate Court either
affirms or reverses the said deemed decree, a second appeal within the
scope of Section 100 of the Code shall lie before the High Court. I answer the
reference in negative and respectfully concur with the conclusion at
paragraph 68 of the judgment of Justice Sen.
(Kausik Chanda, J.)
