Mehvish Choudhary vs J & K Bank & Anr
2023 Latest Caselaw 1041 j&K

                                                                          Sr.No. 19


                HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                              AT JAMMU

                                                   CR No. 23/2020
                                                   CM No. 1012/2020

Mehvish Choudhary                                      .... Appellant(s)/ Petitioner(s)

                   Through :- Mr. Aseem Sawhney, Advocate

        V/s

J & K Bank & Anr.                                                   ....Respondent(s)
                   Through :- Mr. R K Jain, Sr. Advocate with
                              Mr. Pranav Jain, Advocate
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
                            ORDER

22.05.2023

(ORAL)

1. Through the medium of the instant petition, revisional jurisdiction of this

Court enshrined under Section 115 of the Code of Civil Procedure (for

short, 'CPC') is being invoked for setting aside order dated 29.08.2019

(for short, 'impugned order'), passed by the court of City Judge, Jammu

(for short, 'the trial court') in case titled as "Mehvish Choudhary vs. J &

K Bank & Anr.".

2. The facts giving rise to the filing of the instant petition would reveal that

the petitioner herein filed inter alia a suit for mandatory injunction against

the defendants/respondents herein and during the pendency of the said

suit, the defendants/respondents herein filed an application for rejection of

the plaint in terms of Order 7 Rule 11 CPC and the said application came

to be allowed by the trial court in terms of the impugned order, rejecting

the suit of the plaintiff.

3. The impugned order is being challenged by the petitioner herein on the

following grounds:-

I. That the impugned order/judgment is illegal and arbitrary and thus,

deserves to be set aside.

II. That the suit was not hit by any provisions of Specific Relief Act

and the purpose of the application was only to delay the trial.

III. That since 2013 March, the suit was pending before the Trial Court

but after filing the written statement and when the matter was in the

prime of documents and further evidence of the plaintiff, then the

respondent bank initiated this application to circumvent the trial

after a period of about six years.

IV. That the original documents of the testimonials of the petitioner

have also been submitted in the shape of documents before the Trial

Court and now only issues were to be struck and evidence to be led

by the parties. However, before framing such issues whether

jurisdiction or legal issue of cause of action etc. the court has

circumvented/aborted the trial at its prime stage only.

V. That it is settled law that the declaration is always sought in case of

employment when the court concludes in favour of plaintiff and

consequential relief of injunction can be granted.

VI. That since the J&K Bank Ltd. is not State as held by this Hon'ble

High Court's Full Bench, therefore, no writ petition could have been

filed against the J&K Bank by the petitioner and the only remedy

for the petitioner was to file the civil suit, however, the learned trial

court by virtue of impugned judgment, has left the petitioner

remediless which as per settled law is illegal as it is settled law that

nobody will be left remediless against any action of the

authority/instrumentality or organization, thus, the remedy was to

file a suit, but mere technicalities, the suit could not have been

rejected in this way that too in the manner and fashion the learned

trial court has done.

VII. That the learned trial court has not discussed even a single judgment

cited by the parties and has merely a ritual formality quoted the title

and citations of these judgments while as Hon'ble High Court in is

to be discussed, distinguished and not merely only touched.

VIII. The para from J&K High Court judgment in Mariyam Akhter &

Anr. vs. Wazir Mohd. on 14 October, 2010 Cr. Rev No. 51 of 2005

and Cr.M P No. 15 of 2005 is as follows:-

.....90.Before parting with the judgment, it is necessary to put on record certain observations.

91. The learned Judicial Officers while quoting cited judgments and judicial authorities, shall extract the relevant paragraphs of the judgment referred to with clear mention of the said paragraph/paragraphs therein instead of quoting the Head notes of a particular judgment. In the instant case, on perusal of the impugned judgment and order, it appears that the learned Magistrate has quoted the Head Notes only of the judgment referred to or relief upon. Be it noted that Head Notes are not the ratio or operative part of the judgment. It is simply an editorial comment and , accordingly, attempt should be made quoting the Head Notes only.

Sd/-

(Dr. Aftab H.Saikia) Chief Justice

IX. That the arguments of the plaintiff/petitioner have not been

appreciated rather the court has held that the plaintiff has

instrumented the suit for Mandatory Injunction to command the

defendants to implement the reservation policy for Scheduled Tribes

and simply held that the relief is specifically barred in the shape of

present plaint. The learned trial court has not even averred a single

provision of law that as to under which section of Relief Act, the

Mandatory Injunction of this type is barred and merely has adverted

that the suit has been drafted cleverly in order to circumvent the

provisions of law. Thus, the impugned is lacking the sanctity and

merely mechanical in nature, arbitrary and illegal, leaving the poor

plaintiff/petitioner remediless against the arbitrary action of Power

Organization like the J&K Bank herein. Thus, the present Revision

Petition.

Heard learned counsel for the parties and perused the record.

4. Learned counsel for the petitioner while making his submissions reiterated

the contention raised and grounds urged in the petition, whereas, the

counsel for the respondents while opposing the said contentions and

grounds raised and urged, would raise a preliminary objections qua the

maintainability of the petition and would contend that an order passed

under O.7 r.11 CPC, rejecting the plaint is a decree within the meaning of

Section 2 (2) of the CPC and as such, is appealable in terms of Section 96

read with Order 41 of the CPC. Mr. Sawhney though would controvert the

contention of the counsel for the respondents, yet would pray for

conversion of the revision petition into an appeal.

5. Having regard to the aforesaid preliminary objections, it is deemed

appropriate to address to the same in the first instance.

Section 2 (2) of CPC defines the term "Decree" and reads as under:-

"(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 ot 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.

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."

What emanates from a plain reading of the aforesaid provision is that, the

same specifically provides that the rejection of a plaint shall be deemed to

be a decree. In law the word "deemed" is commonly used for creating a

statutory fiction for extending the meaning to a subject matter which it

does not specifically designate. In other words, whenever the word

"deemed" is used in a statute in relation to a person or a thing, it implies

that the Legislature, after due consideration has exercised its judgment in

conferring that status or attribute to a person or a thing.

An adjudication, not fulfilling the requisites of Section 2 (2) of CPC cannot

said to be "deemed", however, by a legal fiction, certain orders and

determinations are deemed to be a decree within the meaning of Section 2

(2) like an order passed under O.7 r.11 CPC,

The Apex Court in case titled as "Chief Inspector of Mines vs. K.C.

Thapper" reported in AIR 1961, Supreme Court 838 has provided as

follows:-

".......a question may therefore arise as to the effect of such legal fiction

and the effect of such legal fiction is that a position which otherwise

would not be there, is deemed to be present under certain circumstances

and that an effect must therefore be given to such legal fiction" and

though, an order passed under O.7 r.11 CPC, rejecting the plaint does not

preclude the plaintiff from presenting a fresh plaint on the same cause of

action, yet, Section 2 (2) of the CPC specifically provides that the rejection

of the plaint shall be deemed to be a decree.

6. Keeping in mind the aforesaid position and principles of law and reverting

back to the case in hand, it is not in dispute that the plaint of the

plaintiff/petitioner herein came to be rejected by the trial court in terms of

the impugned order under the provision of O.7 r.11 CPC and same under

Section 2 (2) CPC is deemed to be a decree and a decree is appealable in

terms of Section 96 read with Order 41 of the CPC, as it is the decree

against which an appeal lies being the settled position of law and the view

of the Apex Court as laid down in case titled as "Jagat Dhish Bhargava

vs. Jalwahar Lal Bhargava" reported in 1961 AIR (SC) 832. It is thus

clear from the aforesaid position that no revision would lie against the

rejection of plaint, even if, it is found that the trial court while passing the

impugned order has committed any procedural irregularity as has been

held by the Apex Court in case titled as "Rishabh Chand Jain &

Another vs. Ginesh Chandra Jain" reported in 2016 (6) SCC 675.

7. While considering the submission of Mr. Sawhney for conversion of the

instant revision petition into an appeal and though there may be a case

wherein, power of converting a revision petition into an appeal or vice

versa may be exercised by this Court, yet, there is an impediment created

by Civil Courts Act, Svt. 1977 thereto in exercise of such power by this

Court, in that, the order of rejection of plaint impugned in the instant

petition stands passed by a Sub-Judge i.e. City Judge Jammu and an

appeal thereto would lie to a District Judge and not to this Court under the

hierarchy of courts. The submission of Mr. Sawhney made in this regard,

therefore cannot be accepted.

8. For the aforesaid reasons, the preliminary objections raised by the counsel

for the respondents succeed and the instant petition is held, not

maintainable. Resultantly, the petition fails and is accordingly dismissed

along with connected application(s), if any.

(Javed Iqbal Wani) Judge

Jammu:

 22.05.2023
 Manan

                  Whether the order is speaking     :   Yes

                  Whether the order is reportable   :   Yes