Gujarat High Court

Mona Arvind Patel vs Sushmaben Bhupeshbhai Shah on 30 January, 2024

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      C/AO/8/2024                                        ORDER DATED: 30/01/2024

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          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/APPEAL FROM ORDER NO. 8 of 2024

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                         MONA ARVIND PATEL
                               Versus
                     SUSHMABEN BHUPESHBHAI SHAH
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Appearance:
PARTY IN PERSON(5000) for the Appellant(s) No. 1
for the Respondent(s) No. 1,2,3
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 30/01/2024

                                   ORAL ORDER

1. This Appeal from Order is filed by the appellant

under Section 104 and Order XLIII of the Code of Civil

Procedure, 1908 against the order impugned dated 19.12.2023

passed below application Exh.19/20 in Civil Suit No.841 of

2023 by the learned Chamber Judge, Court No.25, City Civil

Court, Ahmedabad (Annexure-A).

2. Heard Party-in-Person.

3. Ms. Mona Arvind Patel, Party-in-Person submits

that the learned trial Court should have looked into the

averments made in the plaint only to find whether any cause

of action under Order VII Rule 11(A) of the Code of Civil

Procedure, 1908 of the second and third respondents is

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disclosed in the plaint. She has submitted that the impugned

order is passed under Order XIV of the Code, but her

application was under Order VII Rule 11 of the Code

(Annexure-B).

4. Upon being asked by the Court as to how this

Appeal from Order is maintainable.

5. Learned Party-in-Person submits that the impugned

order of costs under the provisions of Section 35-B of the

Code, which is preceded or accompanied by the impugned

order of dismissal of application - Annexure-B is enumerated

is Section 104 of the Code. She also submits that as also the

impugned order, at this preliminary stage of consideration of

the rejection of the plaint, is passed considering other

questions or issues raised by the learned trial Court. She

further submits that all such questions or matter made to be

the subject-matter of the impugned order would not be within

the scope of the revision.

6. On being repeatedly asked by the Court as to how

this Appeal from Order is maintainable, the learned Party-in-

Person reiterates her above submission. She further submits

that the order impugned does not fall under Order XLIII of

the Code.

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7. I have heard learned Party-in-Person. I have

perused the impugned order passed by the learned trial

Court. As averred, the appellant has filed an application

Exh.20 (Annexure-B) under Order VII Rule 11 of the Code

before the learned trial Court. The learned trial Court has

passed the impugned order (Annexure-A) below Exh.19/20

(Chamber Summons) and rejected the said application of the

appellant and has imposed cost of Rs.1,000/- upon the

appellant under Section 35-B of the Code. It is this order

which is challenged by the learned Party-in-Person before this

Court in the form of Appeal from Order.

8. At this stage, it would be fruitful to refer to the

provisions of Order XLIII of the Code, which is as under :

"1. Appeal from orders.--An appeal shall lie from the following orders under the provisions of section 104, namely: --

(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court 2 [except where the procedure specified in rule 10A of Order VII has been followed];

* * * * *

(c) . an order under rule 9 of order IX rejecting an application (in a case open to

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appeal) for an order to set aside the dismissal of a suit;

(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;

* * * * *

(f) an order under rule 21 of Order XI; * * * * *

(i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;

(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;

(ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable;]

(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;

(l) an order under rule 10 of Order XXII giving or refusing to give leave;

* * * * *

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(n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

[(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person;] * * * * *

(p) orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV;

(q) an order under rule 2, rule 3 or rule 6 of order (XXVIII);

(r) an order under rule 1, rule 2 1 [rule 2A], rule 4 or rule 10 of Order XXXIX;

(s) an order under rule 1, or rule 4 of Order XL;

(t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal;

(u) an order under rule 23 1 [or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;

* * * * * (w) an order under rule 4 of Order XLVII granting an application for review.

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[1A. Right to challenge non-appealable orders in appeal against decrees.--(1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced. (2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.]

2. Procedure.--The rules of Order XLI shall apply, so far as may be, to appeals from orders."

9. Under the circumstances, this Appeal from Order

is misconceived considering the provisions of Order XLIII

Rule 1 of the Code of Civil Procedure, 1908, as the

impugned order, which cannot be considered as appelable

order under this proceeding. Therefore, this Appeal from

Order is not entertained and hence, dismissed.

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10. It is noted that before writing this order, this

Court has indicated to the learned Party-in-Person that