Tarun Chopra And Ors. vs Union Of India And Ors.
1992 Latest Caselaw 300 Del

JUDGMENT

P.N. Nag, J.

(1) By this petition under Article 227 of the Constitution of India, the petitioner- plaintiff has prayed for quashing the impugned order dated 18th July,1991 passed by Shri I.C. Tewari, sub Judge First Class, Delhi, respondent No.4 refusing to entertain the suit without notice under-Section 80 of the Code of Civil Procedure in view of the urgency in the matter.

(2) The petitioner has filed a suit for permanent injunction before the trial court restraining the defendants from creating any hindrance or obstruction whatsoever in the profession of the plaintiff of escorting and interpreting foreign tourist groups in any monument.

(3) Although the suit was filed against the Union of India, no notice admittedly has been given under Section 80 of the Code of Civil Procedure for institution of the suit. The trial court, therefore, did not entertain the suit by the impugned order by holding that there is no urgency in the matter and directed the plaintiff to file a suit after giving notice under Section 80 of the Code of Civil Procedure. The plaint has been returned to the plaintiff with the directions to serve a notice under Section 80 of the Code of Civil Procedure and thereafter the suit be filed.

(4) Being aggrieved against this order, the present petition has been filed.

(5) MR.SANGHI submits that there was urgency in the matter and the learned trial court should have exercised its jurisdiction by granting injunction prayed for by the plaintiffs restraining the defendants from stopping, obstructing or causing any hindrance in the free entry of the plaintiffs with foreign tourists for the purpose of entering into ancient monuments, as refusal of such an order by the trial court has resulted in depriving the plaintiffs their livelihood and which cannot be compensated in terms of money.

(6) After hearing the parties, I am of the opinion that this petition is not maintainable as the impugned order returning the plaint to the plaintiffs with a direction to serve notice under Section 80 of Code of Civil Procedure and thereafter filing the suit, in substance, is rejection of a plaint under Order 7 Rule 11(d) ORDER7 Rule 11(d) reads as under; "Rejection of a plaint. II. The plaint shall be rejected in the following cases. (d) where the suit appears from the statement in the plaint to be barred by any law."

IN Rahmath Bi and another v. State Wakf Board the view has been expressed that non-compliance would be covered by Order 7 Rule ll(d) of the Code of Civil Procedure. In this connection the Madras High Court has relied upon various judgment of the High Courts and also of the Supreme Court.

(7) The rejection of plaint is deemed to be included in the definition of "decree". Section 2 of the Code of Civil Procedure reads as follows:

"(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 matter in controversy in the suit and may be either preliminary or final. It shall 1be deemed to include the rejection of a plaint and the termination 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 parly final."

(8) It this situation, therefore, an appeal would lie against the impugned order under Section 96 of the Code of Civil Procedure. Whether or not the order is illegal or such a jurisdiction should be exercised by the trial court, that can be well urged in the appeal. Since an efficacious alternative remedy of appeal is provided for, this petition is not maintainable and is dismissed accordingly.