Smt. Hoshiari Devi And Ors. vs Shri Jagat Singh And Anr.
2006 Latest Caselaw 1999 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The respondents filed a suit under Section 6 of the Specific Relief Act, 1963 (hereinafter referred to as the said Act) against the petitioners. The trial court in terms of the order dated 13.4.2004 dismissed the suit. It may be noticed that the suit was not finally adjudicated on merits but the trial court found that the title of the respondents was defective and thus the suit ought to be dismissed. In fact, the trial court has actually rejected the plaint under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code) though the phraseology used shows that the suit has been dismissed. The plaint has actually been rejected on the ground that the suit is barred by law as set out in Clause (a) of Rule 11 of Order 7 of the said Code. In the present proceedings the validity of the said order is not required to be examined and thus it would not be appropriate to comment on the merit of the adjudication by the trial court.

2. The respondents aggrieved by the same filed an appeal before the learned Additional District Judge. The petitioners raised an objection about the maintainability of the appeal in view of the suit being filed under the provisions of Section 6 of the said Act. The appellate court in terms of the impugned order dated 24.10.2005 has held the appeal as maintainable. The said order is sought to be challenged in the present proceedings under Article 227 of the Constitution of India.

3. It has to be appreciated that the suit filed under Section 6 of the said Act is to be governed by the provisions of that Section as it is a suit of a special nature. Sub-section (3) of Section 6 of the said Act provides that no appeal lies from any order or decree passed in any suit instituted under this Section, nor shall any review of any such order or decree be allowed.

4. Learned Counsel for the petitioner contends that the appeal could not have been maintained by the first appellate court in view of the pronouncement of the Apex Court in Sanjay Kumar Pandey and Ors. v. Gulbahar Sheikh and Ors. . The Supreme Court has held that in view of provisions of Sub-section (3) of Section 6 of the said Act, the remedy of an aggrieved party lies in filing a revision under Section 115 of the said Code or a regular suit based on title.

5. Learned Counsel for the respondent, on the other hand, seeks to contend that there is no adjudication on merits as the plaint has been rejected. Learned Counsel thus submits by reference to the provisions of Order 4 of the said Code that a suit has to be instituted by presenting a plaint and only when a plaint complies with Order 6 and Order 7 of the said Code would the said suit really be deemed to be instituted. Order 4 Rule 1 of the said Code reads as under:

ORDER IV

INSTITUTION OF SUITS

1. Suit to be commenced by plaint. - (1) Every suit shall be instituted by presenting a plaint in duplicate to the Court or such officer as it appoints in this behalf.

(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.

(3) the plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in Sub-rules (1) and (2).

6. Learned Counsel thus submits that when the trial court exercises jurisdiction under Order 7 Rule 11 of the said Code, it amounts to rejection of a plaint presented at the threshold.

7. Learned Counsel also submits by reference to Section 2(2) of the said Code that as per the deeming provisions contained therein an order passed for rejection of a plaint is deemed to be a decree and thus would be appealable. Section 2(2) of the said Code reads as under:

2. Definitions. - In this Act, unless there is anything repugnant in the subject or context, -

(1) ...

(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.

8. On consideration of the submission of the learned Counsel for the parties I am of the view that there is no doubt that when a plaint is rejected by a Court exercising powers under Order 7 Rule 11 of the said Code, the same falls within the definition of the decree under Section 2(2) of the said Code and only an appeal would be maintainable. In this behalf reference may be made to the judgment of the learned single Judge of this Court in Kartar Singh v. Smt. Shanti and Ors. which follows the view taken in Shamsher Singh v. Rajinder Prashad and Ors. . This would however be the position in case of an ordinary suit.

9. The distinguishing factor in the present case is that the suit has been filed under the provisions of Section 6 of the said Act. Learned Counsel for the respondent, thus, seeks to point out that the suit was filed under Section 6 of the said Act but simultaneously a decree for injunction was also prayed. However, it cannot be lost sight of that Section 6 of the said Act is a special procedure created to try a particular nature of suits where a party is dispossessed from the suit property without due process of law and cannot be clubbed with any other relief. Section 6 of the said Act reads as under:

6. Suit by person dispossessed from immovable property. (1) If any person is dispossessed, without his consent, of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.

(2) No suit under this section shall be brought-

(a) after the expiry of six months from the date of dispossession; or

(b) against the Government.

(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

10. Sub-section 3 of Section 6 of the said Act clearly bars an appeal from any decree or order passed under the said provision. In view of the judgment of the Apex Court in Sanjay Kumar Pandey and Ors. case (supra) it is no more res integra that the remedy from such an order or decree would be a title suit or revision under Section 115 of the said Code. Since the rejection of the plaint results in a deemed decree and the suit is under Section 6 of the said Act, the remedy of the respondents was only by filing a revision under Section 115 of the said Code.

11. In view of the aforesaid position, the impugned order cannot be sustained and is set aside. It is held that the appeal filed by the respondents was not maintainable and the remedy of the respondents was only by filing a title suit or revision under Section 115 of the said Code. It will thus be now for the respondents to take recourse to the appropriate legal remedy in accordance with law aggrieved by the impugned order of the trial court dated 13.4.2004.

12. The petition is allowed leaving the parties to bear their own costs.