Chattisgarh High Court
Shanti Bai vs Kishnuram on 29 July, 2021
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved for Orders on : 19.07.2021
Order Passed on : 29.07.2021
W.P.(227) No.324 of 2020
1. Shanti Bai W/o Shri Mangal Sai Aged About 67 Years
2. Bhatri W/o Shri Kamlu Aged About 40 Years
3. Pali W/o Anturam Aged About 45 Years
(All are r/o Rautpara, Chitalanka, Tahsil And District Dantewada
Chhattisgarh)
---- Petitioners
Versus
1. Kishnuram S/o Shri Chandan Aged About 50 Years R/o Chitalanka
Tahsil And District Dantewada Chhattisgarh
2. Vidhyasagar Singh S/o Shri Kedarnath Singh Aged About 57 Years R/o
Infront Of Ambedkar Park Dantewada Tahsil And District Dantewada
Chhattisgarh
3. Tahsildar Dantewada Tahsil Office Dantewada District Dantewada
Chhattisgarh
4. State Of Chhattisgarh Through Collector Dantewada, District
Dantewada Chhattisgarh
---- Respondents
For Petitioners : Mr. Prafull N. Bharat, Sr. Advocate with Mr.
Keshav Dewangan, Advocate.
For respondent No.1 : Mr. Shrawan Agrawal, Advocate.
For respondents No.03 & 04 : Dr. Anil Tripathi, Panel Lawyer.
Hon'ble Shri Justice Rajendra Chandra Singh Samant
CAV Order
29/07/2021
1. This petition has been brought being aggrieved by the order dated
24.12.2019 passed in Miscellaneous Civil Appeal No.11 of 2015.
2. It is submitted, that the petitioners are defendants in the Civil Suit No.5A
of 2013. The petitioners filed an application under Order VII Rule 11 of
C.P.C. praying for rejection of the plaint, which was allowed by the trial
Court vide order dated 05.10.2015 and the plaint of the respondent
No.1/plaintiff was rejected. Respondent No.1 then preferred
Miscellaneous Appeal before the Court of Additional District Judge,
F.T.C. South Bastar Dantewada, C.G. which has been allowed by the
impugned order and the Civil Suit of Respondent No.1 has been
restored.
3. It is further submitted that the order of plaint rejection passed by the trial
Court under Order VII Rule 11 of C.P.C. was not appealable under Order
43 Rule 1 of C.P.C. Such an order of plaint rejection is appealable as an
appeal against the decree. Section 2(2) of C.P.C. provides that the order
of rejection of plaint is included in the definition of decree. Therefore,
such an order was appealable in the First Appeal under Section 96 read
with Order 41 of C.P.C.
4. Reliance has been placed on the judgment of Supreme Court in the
Case of Rishabh Chand Jain & Anr. Vs. Ginesh Chandra Jain reported
in (2016) 6 Supreme Court Cases 675 and also on the judgment of
Supreme Court in the case of Samsher Singh Vs. Rajinder Prashad &
Ors. reported in AIR 1973 Supreme Court 2384.
5. Learned counsel for the private respondent concedes that the plaint
rejection order of the trial Court was not appealable under Order 43
Rule 1 of C.P.C., however, it is submitted that the appeal has been
decided on merits, therefore, it may be treated as decision in First
Appeal filed under Section 96 of C.P.C.
6. Learned counsel for private respondents submits, that the High Court
has directed for filing of Second Appeal which has been filed and
registered as 520 of 2017, therefore, the matter being subjudice in the
Second Appeal, this petition under Article 227 Constitution is not
maintainable.
7. Learned State counsel makes a formal objection.
8. In reply, it is submitted by the learned Counsel for petitioner that the
order in miscellaneous Civil Appeal cannot be treated as First Appeal
because it is an order passed without jurisdiction. It is the statute which
governs the appeal and not the dictum of any Court. Therefore, the
impugned order is not sustainable.
9. Heard learned counsel for both the parties and perused the documents
present.
10. Considered on the submissions. It has been conceded by the learned
counsel for private respondents that the order of the trial Court dated
05.10.2015 was not appealable under Order 43 Rule 1 of C.P.C. How
the question raised is this, that whether the impugned order can be
treated as an order passed in First Appeal. It appears that the petitioner
has not raised any objection before the appellate Court regarding the
maintainability of the Miscellaneous Appeal. However, maintainability of
an appeal is a question of law. The petitioner cannot be penalised for
not raising this issue before the appellate Court and that would not
create a bar to challenge the legality of the impugned order, which has
been clearly passed in a Miscellaneous Civil Appeal and it is not an
appeal under Section 96 of C.P.C.
11. In the case of Rishabh Chand Jain & Anr. (Supra), it has been clearly
held, that when the order passed is a decree under the definition of
Section 2(2) of C.P.C. in that case, the only remedy against such an
order shall be appeal under Section 96 read with order 41 of C.P.C. As
there are specific provisions present and the remedy was available to
the respondent no.1 for filing appeal under Section 96 of C.P.C. and any
order passed in such an appeal would be a lawful order, whereas the
order that has been passed in Miscellaneous Appeal is clearly without
jurisdiction and not permissible under the Code of Civil Procedure.
Hence, for these reasons, the impugned order cannot be treated as an
order passed in First Appeal for the reasons mentioned hereinabove.
12. The other statement of learned counsel for respondent No.1 regarding
pendency of Second Appeal No.520 of 2017 has been verified and it
has been found that the Second Appeal No.520 of 2017 is between the
parties Prema Bai & Rewalal and not between the parties in this case.
The respondent No.1 has not supplied any document of Second Appeal
filed and only oral submission has been made, which has been verified
and found incorrect. Hence, that submission is of no consequence.
13. On the basis of the discussions made hereinabove, it is held that the
impugned order has been passed by the appellate Court without the
authority of law. Therefore, it is unsustainable. Hence, the petition is
allowed and the impugned order is quashed. The respondent No.1 is
granted liberty to file appeal under Section 96 of C.P.C. against the
order of the trial Court before the Court having jurisdiction.
14. Accordingly, the petition stands disposed off.
Sd/-
(Rajendra Chandra Singh Samant)
Judge
Monika
