Smt. Laxmi Devi vs Om Prakash Jaiswal
2021 Latest Caselaw 302 Jhar

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         (Civil Appellate Jurisdiction)
                              F.A. No. 232 of 2017
                                ......

1. Smt. Laxmi Devi

2. Prakash Chandra Choudhary ...... Appellants Versus Om Prakash Jaiswal ......Respondent

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) ......

      For the Appellants                   : Mr. Kumar Harsh, Advocate
      For the Respondent                   : Mr. Anil Kumar, Sr. Advocate
                                   -----
15/Dated: 20/01/2021.

             Heard, learned counsel for the parties.

Learned counsel for the appellants has assailed the impugned order dated 08.06.2017 passed by learned Sr. Civil Judge-I, Dumka in Original Suit No. 20 of 2017. The Title Suit has been filed for declaration that registered sale deed no.381 of 2016 dated 20.08.2016 executed before the District Sub-Registry Office, Dumka in favour of the defendant is illegal and further for cancellation of the same and grant of injunction in respect of the suit property described in the Schedule -A of the plaint.

Learned counsel for the appellants has submitted that without issuing any summons at the stage of admission itself, learned Sr. Civil Judge-I, Dumka has dismissed the suit in cryptic manner.

Learned counsel for the appellants in support of his submission placed reliance upon the judgment of Apex Court in the case of Alka Gupta vs. Narendra Kumar Gupta, reported in 2010 SCC 141 paras 27 and 28 of which are profitably quoted herein:-

"27. The Code of Civil Procedure is nothing but an exhaustive compilationcum- enumeration of the principles of natural justice with reference to a proceeding in a court of law. The entire object of the Code is to ensure that an adjudication is conducted by a court of law with appropriate opportunities at appropriate stages. A civil proceeding governed by the Code will have to be proceeded with and decided in accordance with law and the provisions of the Code, and not on the whims of the court. There are no short-cuts in the trial of suits, unless they are provided by law. A civil suit has to be decided after framing issues and trial permitting the parties to lead evidence on the issues, except in cases where the Code or any other law makes an exception or provides any exemption.

28. The Code enumerates the circumstances in which a civil suit can be dismissed without trial. We may refer to them (not exhaustive):

(a) Dismissal as a consequence of rejection of plaint under Order 7 Rule 11 of the Code in the following grounds:

(i) where it does not disclose a cause of action;

(ii) where the relief in the plaint is undervalued and the plaintiff fails to correct the valuation within the time fixed;

(iii) where the court fee paid is insufficient and the plaintiff fails to make good the deficit within the time fixed by court;

(iv) where the suit appears from the statement in the plaint to be barred by law; (v) where it is not filed in duplicate and where the plaintiff fails to comply with the provisions of Order 7 Rule 9 of the Code.

(b) Dismissal under Order 9 Rule 2 or Rule 3 or Rule 5 or Rule 8 for nonservice of summary or non-appearance or failure to apply for fresh summons.

(c) Dismissal under Order 11 Rule 21 for non-compliance with an order to answer interrogatories, or for discovery or inspection of documents.

(d) Dismissal under Order 14 Rule 2(2) where issues both of law and fact arise in the same suit and the court is of opinion that the case or any part thereof may be disposed of on an issue of law only and it tries such issue relating to jurisdiction of the court or a bar to a suit created by any law for the time being in force first and dismisses the suit if the decision on such preliminary issue warrants the same.

(e) Dismissal under Order 15 Rule 1 of the Code when at the first hearing of the suit it appears that the parties are not at issue on any question of law or fact.

(f) Dismissal under Order 15 Rule 4 of the Code for failure to produce evidence.

(g) Dismissal under Order 23 Rules 1 and 3 of the Code when a suit is withdrawn or settled out of court."

Learned counsel for the appellants has further submitted that under Order 7 Rule 11 CPC, a plaint can be rejected on following grounds:-

"(a) where it does not disclose a cause of action;

(b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of rule 9;"

Learned counsel for the appellants has further submitted that there are two possibilities for a Court, if the plaint is not proper then either to return the same or to reject the plaint but dismissal of a suit without adjudication shall cause prejudice to the plaintiff as a decree has been prepared without decision on merit and same shall operate as a Res- judicata.

To buttress his argument, learned counsel for the appellants has placed reliance upon the judgment passed by the Delhi High Court in the case of Bright Enterprises Private Limited and another vs. MJ Bizcraft LLP and another, (2017) 1 High Court Cases (Del) 110 corresponding 2017 SCC OnLine Del 6394 paras 15 to 20 of the same may be taken note of which is profitably quoted herein:-

"15. First of all, let us deal with certain provisions of the CPC. Section 9 of the CPC makes it clear that Courts, subject to the other provisions of the CPC, shall have jurisdiction to try all suits of a civil nature except those suits whose

cognizance is either expressly or impliedly barred. Section 26 CPC deals with the institution of suits and sub-Section (1) thereof stipulates that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. Furthermore, in every plaint, the facts shall be proved by affidavit as provided in sub-Section (2) of Section 26. With regard to commercial disputes of a specified value, a proviso has also been added which stipulates that such affidavit has to be in the form and manner as prescribed under Order VI Rule 15 A.

16. Section 27 CPC deals with the issuance of summons to defendants. It stipulates that where a suit has been duly instituted', a summons may be issued to the defendant to appear and answer the claim and may be served in the manner prescribed etc. Section 33 of the CPC stipulates that the Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow.

17.Order V Rule 1 CPC stipulates that when a suit has been duly instituted', a summons may' be issued to the defendant to appear and answer the claim and to file the written statement of his defence etc. It is clear that the provisions of Order V Rule 1(1) reflect the substantive provision contained in Section 27 CPC.

18. From the above and particularly upon examining the provisions of Section 27 and Order V Rule 1(1) CPC, it is evident that when a suit is regarded as having been duly instituted', a summons may be issued to the defendant. The use of the expression duly instituted' has to be seen in the context of the provisions of Orders VI and VII of the CPC. In the present matter, it is nobody's case that the suit had not been duly instituted in the sense that it did not comply with the requirements of Order VI and VII CPC. It is neither a case of return of a plaint under Order VII Rule 10 nor a case of rejection of a plaint under Order VII Rule 11 CPC. The present case is one of dismissal of the suit itself on merits. Therefore, the only thing that needs to be examined is whether the Court had a discretion to issue or not to issue summons given that the suit had been duly instituted. In our view, the use of the word may' does not give discretion to the Court and does not make it optional for it to issue summons or not. This is further fortified by the fact that the first proviso to Order V Rule 1(1) itself gives a situation where summons must not be issued and that happens when a defendant appears at the presentation of the plaint and admits the plaintiff's claim. Therefore, in such a situation, there is no requirement for issuance of summons and that is why the word may' has been used in Order V Rule 1(1). In all other cases, when a suit has been duly instituted' and is not hit by either Order VII Rule 10 or Order VII Rule 11 CPC, summons has to be issued to the defendant.

19.In the present case, the learned Single Judge has neither returned the plaint under Order VII Rule 10 nor rejected the plaint under Order VII Rule 11 CPC. Therefore, it was incumbent upon the learned Single Judge to have issued summons to the respondents/defendants, particularly because the respondents/defendants had not appeared at the time of presentation of the plaint and did not admit the claim of the appellants / plaintiffs. The Rule of audi alteram partem is embedded in Order V Rule 1 sub-rule (1) read with Section 27 CPC.

20. We may also point out that there is a clear distinction between return of a plaint', ‗rejection of a plaint' and dismissal of a suit'. These three concepts have different consequences. A dismissal of a suit would necessarily result in a subsequent suit being barred by the principles of res judicata, whereas this would not be the case involving return of a plaint' or rejection of a plaint'. What the learned Single Judge has done is to have dismissed the suit of the appellants/plaintiffs at the admission stage itself without issuance of summons and this, we are afraid, is contrary to the provisions of the statute."

Learned counsel for the appellants has thus submitted that in the present case learned Sr. Civil Judge-I, Dumka has dismissed the suit, which necessarily result in subsequent suit being barred by the Principle

of res-judicata, as such, the impugned judgment passed by the Court below without following the procedure envisaged under Order V rule 1 read with Section 27 of the CPC and in conflict with the provisions of Order VII Rule 11 CPC is not sustainable in the eyes of law, as such, order may be set aside and the matter may be remitted to the court below, but not before the same Judicial Officer, if he is still posted in the station.

Learned Sr. counsel for the respondent, Mr. Anil Kumar assisted by Mr. Abhisekh Kumar has opposed the prayer of the appellants.

After haring, learned counsel for the parties and looking into the facts and circumstances of the case, it appears that at the initial stage of admission, without issuing summon, the learned court below has dismissed the suit without framing issue. It is not a case of rejection of plaint or return of plaint rather it is a case of dismissal of suit which has caused serious injury to the appellants as no issue was framed nor the lis has been adjudicated by the learned trial court. In view of the judgment passed by the Apex Court in the case of Alka Gupta (Supra) this Court set aside the impugned judgment dated 08.06.2017 passed by learned Sr. Civil Judge-I, Dumka in Original Suit No. 20 of 2017.

The suit is remitted to the court below, but with a direction that the Original Suit No. 20 of 2017 shall not be listed before the same Presiding Officer, if he is still posted in the said station.

Accordingly the instant appeal is allowed.

Office is directed to send the LCR to the court below so as to list this case before the appropriate Bench, but not before the same Judicial Officer, who has passed the impugned judgment and decree.

(Kailash Prasad Deo, J.)

sandeep/R.S-