Murari Lal vs Madan Lal Moondra
2015 Latest Caselaw 4552 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+               CM(M) 68/2015 & CM 1310/2015 (stay)
%                                         Reserved on: 06th May, 2015
                                          Decided on: 30th June, 2015
       MURARI LAL                                        ..... Petitioner
                          Through:     Mr. S.P. Aggarwal, Mr. Imran Khan,
                                       Mr. Himanshu Bohra, Mr. Sachin,
                                       Advocates.
                          versus

    MADAN LAL MOONDRA                        ..... Respondent

Through: Mr. Achal Gupta, Advocate.

CORAM:

HON'BLE MS. JUSTICE MUKTA GUPTA

1. A suit was filed by the Respondent seeking possession, mesne profit, recovery of amount and mandatory injunction from the Petitioner i.e. Suit No. 503/13/09 tilted as "Madan Lal Mundra vs. Murari Lal" before the learned Civil Judge.

2. In the suit it was claimed that father of Murari Lal was a tenant under Madan Lal Moondra and the said tenancy had been terminated vide notice dated 17th August, 1984. In the said suit, an application was filed by Murari Lal under Order VII Rule 11 CPC for rejection of the plaint on the ground that the suit for possession and damages alleging tenancy was not maintainable as the area was notified as a Slum area and no permission under Section 19 of the Slum Area Act had been taken. This application of Murari Lal was dismissed by the learned Civil Judge vide order dated 4th September, 2014.

3. An appeal was filed against the order dated 4 th September, 2014 dismissing the application of Murari Lal under Order VII Rule 11 CPC

which was dismissed by the learned ADJ vide the impugned order dated 24 th November, 2014 holding that the order passed was not appealable and only a revision lies. Hence the present petition challenging the order dated 25 th November, 2014 passed by the learned ADJ.

4. Learned counsel for the Petitioner urges that in view of the decision of the Supreme Court in Shah Babulal Khimji vs. Jayaben D. Kania and another, (1981) 4 SCC 8 followed by this Court in Ms. Jyotika Kumar vs. Mr. Anil Soni and others, 156 (2009) DLT 685 the appeal against the order dismissing an application under Order VII Rule 11 CPC was maintainable, hence the impugned order be set aside.

5. Thus the short question before this Court is whether an appeal to the learned Additional District Judge lies against the order passed by the Civil Judge dismissing an application under Order VII Rule 11 CPC.

6. An appeal is a statutory remedy and unless specifically provided by the statute the same is not maintainable. Under the Civil Procedure Code, an appeal lies under Section 96 from an original decree. Further Section 104 CPC specifies the orders passed under various provisions of CPC wherefrom an appeal lies. An appeal from order can be filed as provided under Order XLIII Rule 1 CPC. An order allowing an application under Order VII Rule 11 CPC would be appealable because the effect of the same is dismissal of the suit amounting to a decree however an order dismissing an application under Order VII Rule 11 CPC does not terminate the proceedings and thus would not be a decree. There being no remedy of appeal from an order dismissing an application under Order VII Rule 11 CPC in the Code of Civil Procedure, the learned ADJ could not have entertained the same.

7. The argument of the learned counsel for the petitioner that in view of the decision in Shah Babu Lal Khimji (supra) an appeal was maintainable is fallacious. In Shah Babu Lal Khimji (Supra) the Supreme Court was dealing with the right of an intra court appeal as provided under the Letters Patent Act and not the Code. The Supreme Court referring to the Letters Patent Appeal from an order of the learned Single Judge of the High Court sitting in original jurisdiction to the Division Bench held that since no revision petition lies against the order of the learned Single Judge to a Division Bench of the same Court when the order is a judgment, an appeal would lie. Clarifying the position, the Supreme Court noted:-

"151. An order which is appealable under the Code or under any other statute becomes appealable as the statute confers a right on the litigant to prefer an appeal against such an order. Such an order may or may not be appealable as "judgment" under clause 15 of the letters patent. An order which may be appealable under clause 15 of the letters patent as a "judgment" becomes appealable as letters patent confers on the litigant a right of appeal against such an order as "judgment". An order appealable under the letters patent may or may not be appealable under the Code. A right of appeal is a creature of statute. A litigant does not have an inherent right to prefer an appeal against an order unless such a right is conferred on the litigant by law. Certain orders become appealable under the Code, as the Code makes such orders appealable. Other statutes may confer a right of appeal in respect of any order under the statute. The letters patent by clause 15 also confers a right to prefer an appeal against a "judgment". An order which satisfies the requirements of „judgment‟ within the meaning of clause 15 becomes appealable under the letters patent. What kind of an order will constitute a judgment within the meaning of clause 15 of the letters patent and will become appealable as such must necessarily depend on the facts and circumstances of each case and on the nature and character of the order passed."

8. The decision in Shah Babu Lal Khimji (supra) has no application to the facts of the present case as the appeal filed by the petitioner before the learned ADJ was not an intra court appeal but an appeal to a higher Court. Consequently, I find no infirmity in the order impugned, dismissing the appeal of the Petitioner. The present petition and application are dismissed.

(MUKTA GUPTA) JUDGE JUNE 30, 2015 'vn'