Delhi High Court
Rajan Lao vs North Delhi Municipal ... on 27 May, 2022
$~1(Appellate)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 481/2022 & CM APPL. 24746/2022, CM APPL.
24747/2022
RAJAN LAO ..... Petitioner
Through: Mr. J.M. Kalia and Mr.Dhruv
Kalia, Advs.
versus
NORTH DELHI MUNICIPAL CORPORATION & ORS.
..... Respondents
Through: Ms.Pavitra Kaur, Adv. for R-
GNCTD
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
J U D G M E N T(O R A L)
% 27.05.2022
1. This petition, under Article 227 of the Constitution of India,
assails an order dated 12th May, 2022, passed by the learned
Additional Senior Civil Judge in CS 1219/22 (Rajan Lao v. NDMC),
in which the present petitioner and respondent are plaintiff and
defendant respectively.
2. The impugned order rejects the plaint under Order VII Rule 11
of the Code of Civil Procedure, 1908, as being bereft of cause of
action.
3. The matter was listed today for arguments on whether, such an
order appears to be appealable under the CPC, a petition under Article
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:31.05.2022
14:44:27
227 of the Constitution would lie. I may note that the issue of
maintainability of a petition under Article 227 of the Constitution,
where the order is passed by a Civil Court, and a provision for appeal
is available to another Civil Court, stands settled by the recent
decision of the Supreme Court in Virudhnagar Hindu Nadargal
Dharma Paribalana Sabai v. Tuticorin Educational Society1 which
holds, in unmistakable terms, that such an appeal would not lie.
Additionally, one may also refer to my recent decisions in Lucina
Land Development Ltd. v. Union of India 2, Rajesh Singh v. Rakesh
Kumar Mittal3etc.
4. The learned ASCJ, who has passed the impugned order, is
unquestionably a "civil court", within the meaning of the CPC. If,
therefore, the impugned order was appealable under the CPC to
another Civil Court, the availability of Article 227 would stand
foreclosed.
5. Section 96 of the CPC deals with appeals from original decrees,
and reads thus:
"Section 96 CPC Description
(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 the Court authorized to hear
appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex
(2019) 9 SCC 538
2022 SCC OnLine Del 1274
2022 SCC OnLine Del 1320
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:31.05.2022
14:44:27
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 cognisable by Courts of Small
Cause, when the amount or value of the subject-matter of the
original suit does not exceed ten thousand rupees.
"Decree" is defined, in Section 2(2) of the CPC, thus:
"2. Definitions.--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 2 *** 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;"
6. A reading of the definition of decree reveals that it is in two
parts. The first part of the definition defines "decree" as meaning the
formal expression of an adjudication which, conclusively determines
the rights of the parties before the Court. The second part of the
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:31.05.2022
14:44:27
definition deems the definition of "decree" to include, inter alia, the
rejection of a plaint.
7. Mr. Kalia sought to submit that even the rejection of a plaint,
under the second part of Section 2(2) would have to take colour from
the earlier part of the definition and would, necessarily, therefore,
require to be a "formal expression of an adjudication", which
"conclusively determines the rights of the parties". I am unable to
agree. Definition clauses in statutes commonly use the expressions
either "means", "includes" or "means and includes". Over a period of
time, the position in law, regarding the scope and ambit of these
expressions, when used in definition clauses, stand settled in P.
Kasilingam v. P.S.G. College of Technology 4, Bharat Co-operative
Bank (Mumbai) Ltd., v. Coop. Bank Employees Union5, Ramanlal
Bhailal Patel v. State of Gujarat 6, National Insurance Co. Ltd. and
Ors. v. Kirpal Singh and Ors 7.
8. Insofar as definition clauses using the expression "means and
includes" are concerned, it is well settled that the inclusive part of the
definition expands the definition beyond what is envisaged by the
"means" part and is intended, therefore, to expand the scope of the
definition". It is against the most basic principles of interpretation of
definition clauses containing "means and includes" to contend that the
inclusive part of the definition has to be conditioned by the "means"
part. This submission of Mr. Kalia is, therefore, in my view,
1995 Supp (2) SCC 348
AIR 2007 SC 2320
AIR 2008 SC 1246
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:31.05.2022
14:44:27
misconceived and is accordingly rejected. Clearly, in my view, by
including, within the definition of "decree", rejection of a plaint, the
legislature intends to expand the definition of "decree" beyond what is
otherwise envisaged by the earlier part of the definition. It would go
against the very grain of the definition, and the obvious intent of the
legislature in crafting the definition in a "means and include" format,
to hold that the rejection of the plaint must also be by way of a formal
expression of an adjudication which conclusively determines the rights
of the parties before the court. In my opinion, any rejection of a plaint
would be a "decree" within the meaning of Section 2(2).
9. Mr. Kalia also sought to submit that every deeming fiction
should be limited to the purpose for which it is created, and cannot
expand beyond it. There can be no quarrel with this proposition.
Having said that, the expression when the deeming fiction is contained
in a definition clause, the obvious intent is to apply that deeming
fiction to every point of that statute where that expression finds place.
The principle that a deeming fiction must be limited to the purposes
for which it is created, cannot, therefore, be of any serious
consequence insofar as the present dispute is concerned.
10. However, another aspect of deeming fiction, which is of
significant import, is the principle that wherever a position of fact or
law is statutorily deemed to exist, it would carry with it every
consequence which would follow from, were that state of affairs to be
in existence. One may refer in this context to Karnataka State Road
AIR 2014 SC 1440
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:31.05.2022
14:44:27
Transport Corpn. v. B.A. Jayaram 8, I. Nelson v. Kallayam
Pastorate9, M. Aamira Fathima v. Annamalai University 10.
11. Applying the said principle to the definition of decree in Section
2(2) of the CPC, by deeming the rejection of a plaint to be a "decree",
every consequence which would follow, in law, were the rejection of
the plaint to be a decree would also be deemed to follow.
12. One such consequence is that the decree would be appealable
under the rejection of the plaint would become appealable under
Section 96 of the CPC. Section 96 is clear in its term. It states, inter
alia that an appeal shall lie from every decree passed by any court
exercising original jurisdiction, to the court authorised to hear appeals
from the decisions of such court. The intent of the legislature is
transparent, from the use of the words, "shall" and "every decree".
No order or decision, which qualifies as a decree within the meaning
of Section 2(2) of the CPC is, therefore, accepted from the ambit of
Section 96.
13. Though Section 96 starts with the words "save where otherwise
expressly provided in the body of this Court" it is nobody's case that
there is any provision in the body of the CPC which excepts orders,
allowing applications under Order VII Rule 11 and consequently,
rejecting plaints from the ambit of Section 96.
1984 Supp SCC 244
(2006) 11 SCC 624
(2018) 9 SCC 171
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:31.05.2022
14:44:27
14. Mr. Kalia also drew my attention to Section 2(14) of the CPC
which defines "order" thus:
"2. Definitions.--
****
(14) "order" means the formal expression of any decision of
a Civil Court which is not a decree;"
15. To my mind, the reliance, by Mr. Kalia, on Section 2(14) is
completely misplaced. What Section 2(14) states is that the formal
expression of any decision of a Civil Court which is not a decree
would be an "order". Decrees are, therefore, accepted from the ambit
of the expression "order" within the meaning of Section 2(14). As the
impugned decision dated 12th May, 2022, passed by the learned ASCJ
qualifies, per definition as a "decree" within the meaning of Section
2(2), per sequitur, it would be amenable to appeal under Section 96 of
the CPC.
16. In view thereof, applying the principles enunciated in
Virudhnagar Hindu Nadargal Dharma Paribalana Sabai1 , I am of
the opinion that this petition, under Article 227 of the Constitution of
India would now lie.
17. Reserving liberty with the petitioner to seek any other
appropriate remedy as may be available to him in law, the petition is
accordingly dismissed as not maintainable.
C. HARI SHANKAR, J.
MAY 27, 2022/kr
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:31.05.2022
14:44:27
