[Cites 18, Cited by 0]

Karnataka High Court

M/S S R Constructions vs Mohd Galib Pasha on 10 March, 2026

Author: S.Vishwajith Shetty

Bench: S.Vishwajith Shetty

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                                                      WP No. 201056 of 2026


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                               IN THE HIGH COURT OF KARNATAKA

                                      KALABURAGI BENCH
                                                                          ®
                            DATED THIS THE 10TH DAY OF MARCH, 2026

                                           BEFORE
                        THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY


                         WRIT PETITION NO. 201056 OF 2026 (GM-CPC)


                   BETWEEN:

                   M/S S R CONSTRUCTIONS
                   HAVING REGISTERED OFFICE AT
                   C-1 AND C-2 S K TOWERS, STATION ROAD,
                   KALABURAGI-585102,
                   REPRESENTED BY ITS MANAGING PARTNER
                   MOHD SHAFEEQ-UR-REHMAN
                   S/O MOHD. ABDUL REHMAN,
                   AGED ABOUT 45 YEARS,
                   R/O OPP. DR. J. S. RATHI HOSPITAL,
                   OLD JEWARGI ROAD, KALABURAGI-585102.

                                                               ...PETITIONER
Digitally signed
by SACHIN          (BY SRI. ABDUL MUQHTADIR, ADVOCATE)
Location: HIGH
COURT OF           AND:
KARNATAKA

                   1.   MOHD GALIB PASHA
                        S/O ABDUL KAREEM,
                        AGED ABOUT MAJOR,
                        R/O PLOT NO.98, OLD JEWARGI ROAD,
                        OPP. GANESH NURSING HOME,
                        KALABURAGI-585102.

                   2.   DATA COLLECTION,
                        PROPRIETOR UNKNOWN,
                        #G8, PLOT NO.98,, SITUATED IN LAND
                        SY NO.73, BRAHMPUR VILLAGE,
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                                       WP No. 201056 of 2026


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     LAYOUT OF E.I.E. CO-OPERATIVE
     HOUSING SOCIETY LTD.,
     KALABURAGI-585102.

3.   VITA COLLECTION,
     PROPRIETOR UNKNOWN,
     #G9, PLOT NO.98, SITUATED IN LAND
     SY NO.73, BRAHAMPUR VILLAGE,
     LAYOUT OF E.I.E. CO-OPERATIVE HOUSING SOCIETY
     LTD., KALABURAGI-585102.

                                               ...RESPONDENTS

(BY SRI RAMACHANDRA AND
 SRI GURUBASAVA C. NAYAK, ADVOCATES FOR C/R1)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO A) ISSUE AN
APPROPRIATE      ORDER/DIRECTION/WRIT        IN   NATURE   OF
CERTIORARI TO QUASH THE ORDER ON IA NO.IV DATED
03-02-2026 PASSED IN COMMERCIAL O.S. NO.32/2025 BY THE
HON'BLE PRINCIPAL DISTRICT AND SESSIONS JUDGE, AT
KALABURAGI    VIDE     ANNEXURE-L     BY   CALLING   FOR   THE
RECORDS AND CONSEQUENTLY, RESTORE THE COMMERCIAL
O.S.NO.32/2025    ON     THE   FILE   OF   HON'BLE   PRINCIPAL
DISTRICT AND SESSIONS JUDGE, AT KALABURAGI WITH A
DIRECTION TO PROCEED WITH THE SUIT. B) GRANT COSTS. C)
SUCH OTHER RELIEF/S AS THIS HON'BLE COURT MAY DEEM
FIT TO GRANT IN THE CIRCUMSTANCES OF THE CASE.

      THIS   PETITION,    COMING      ON    FOR   PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
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                                         WP No. 201056 of 2026


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CORAM: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY


                        ORAL ORDER

Plaintiff is before this Court in this writ petition filed

under Article 227 of the Constitution of India with a prayer

to quash the order at Annexure-L dated 03.02.2026

passed on IA No.IV in Commercial O.S.No.32/2025 by the

Court of Principal District Judge and Commercial Court at

Kalaburagi.

2. Registry has raised an office objection with

regard to maintainability of this writ petition on the ground

that petitioner has an alternate efficacious remedy against

the impugned order under Section 13(1A) of the

Commercial Courts Act, 2015 (hereinafter referred to as

'Act of 2015').

3. Learned Senior counsel Sri Ameetkumar

Deshpande appearing for the petitioner submits that in

view of the proviso to Section 13(1A) of the Act of 2015,

only appeals as provided under Order XLIII of the Code of

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Civil Procedure, 1908 (CPC) and Section 37 of the

Arbitration and Conciliation Act, 1996 would lie to the

Commercial Appellate Division of this Court. The order

impugned is not appealable under Order XLIII of CPC and

therefore this writ petition is maintainable.

4. In support of his arguments, he has placed

reliance on the judgment of this Court in the case of

Trinetramilan Product Protection Solutions Private

Limited vs. A.S.Narayanan in Commercial Appeal

No.195/2024 disposed of on 29.01.2026 and also in the

judgment of Hon'ble Supreme Court in the case of Kandla

Export Corporation and another vs. M/s OCI

Corporation and another reported in [2018] 1 SCR

915.

5. Per contra, learned counsel for the respondents

submits that appeal against the impugned order is

provided under Section 13(1A) of the Act of 2015 and the

proviso to said section only provides for filing of appeals,

in addition to the appeal which lies to the High Court under

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Section 13(1A) of Act of 2015. He submits that the order

impugned is passed by the Commercial Court in exercise

of its powers under Order VII Rule 11(d) CPC, 1908

rejecting the plaint and the said order amounts to a decree

within the meaning of Section 2(2) of CPC, 1908.

Accordingly, he prays to dismiss the writ petition as not

maintainable.

6. Petitioner has filed Commercial O.S.No.32/2025

before the jurisdictional commercial Court at Kalaburagi

seeking the relief of perpetual injunction against the

defendants in respect of the suit schedule properties. In

the said suit, the contesting defendants have appeared

and filed a detailed written statement. I.A.No.IV was filed

under Section 151 of CPC with a prayer to decide the

maintainability of the suit on the ground that plaintiff had

already filed similar suit before the jurisdictional civil Court

in O.S.No.65/2025 and O.S.No.263/2025 in respect of the

very same properties. The said application was opposed by

the plaintiff by filing objection. The trial court, vide the

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order impugned has allowed I.A.No.IV and has

consequently rejected the plaint in O.S.No.32/2025.

7. Section 2(2) of CPC, 1908 defines decree. The

same reads as follows :

"(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 (***) 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;"

8. From a reading of the aforesaid, it is apparent

that an order passed rejecting a plaint would amount to a

decree within the meaning of Section 2(2) of CPC, 1908

and Section 96 of CPC, 1908 provides for filing appeal

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against every decree passed by any Court exercising

original jurisdiction to the Court authorized to hear appeals

from the decision of such Court.

9. Section 13 of the Act of 2015 provides for filing

appeals from decrees of the commercial Courts and

commercial Divisions. Section 13 of the Commercial Courts

Act, 2015 reads as follows:-

"13. Appeals from decrees of Commercial Courts and Commercial Divisions.--[(1) Any person aggrieved by the judgment or order of a Commercial Court below the level of a District Judge may appeal to the Commercial Appellate Court within a period of sixty days from the date of judgment or order.

(1A) Any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising original civil jurisdiction or, as the case may be, Commercial Division of a High Court may appeal to the Commercial Appellate Division of that High Court within a period of sixty days from the date of the judgment or order:

Provided that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908 (5 of 1908) as amended by this Act and

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Section 37 of the Arbitration and Conciliation Act, 1996 (26 of 1996).]

(2) Notwithstanding anything contained in any other law for the time being in force or Letters Patent of a High Court, no appeal shall lie from any order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of this Act."

10. A reading of Section 13(1A) of the Act of 2015,

makes it very clear that any person aggrieved by the

judgment or order of a Commercial Court at the level of

District Judge exercising original civil jurisdiction has a

remedy of filing an appeal against such judgment or order

to the Commercial Appellate Division of the High Court

within a period of 60 days from the date of judgment and

order passed by the Commercial Court at the level of

District Judge.

11. In the present case the impugned order has

been passed by the Court of Principal District and Sessions

Judge and Commercial Court at Kalaburagi and therefore

as against the impugned order which amounts to a decree

within the meaning of Section 2(2) of CPC, 1908, an

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appeal lies to the Commercial Appellate Division of this

Court under Section 13(1A) of the Act of 2015. The

proviso to Section 13(1A) of the Act of 2015 provides for

filing appeal to the Commercial Appellate Division of this

Court against order passed by a Commercial Division or a

Commercial Court, which is enumerated under Order XLIII

of CPC, 1908 and Section 37 of the Arbitration and

Conciliation Act, 1996.

12. The Hon'ble Supreme Court in the case of MITC

Rolling Mills Private Limited and another vs. Renuka

Realtors and others reported 2025 SCC OnLine SC

2375 wherein the plaint was rejected, has considered

Section 13(1A) of the Act of 2015 and in paragraph Nos.17

to 19 the Hon'ble Supreme Court has observed as follows :

"17. Section 13(1A) of the CCA, 2015, is in two distinct parts. The main provision contemplates appeals against 'judgments' and 'orders' of the Commercial Court to the Commercial Appellate Division of the High Court. The proviso, operating as an exception, must be construed harmoniously with the main provision and not in derogation thereof. Where the language of the main provision is plain and unambiguous, the proviso cannot be invoked to curtail or whittle down the scope of the

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principal enactment, save and except where such exclusion is clearly and expressly contemplated. The proviso merely restricts appeals against interlocutory orders to those specifically enumerated under Order XLIII CPC and Section 37 of the Arbitration and Conciliation Act, 1996. Consequently, only such interlocutory orders as are expressly specified therein would be amenable to an appeal under the proviso; orders not so enumerated would not fall within the restricted fold of the proviso.

18. Coming to the judgment relied upon by the respondents, i.e., Bank of India (supra), we are of the view that the same is clearly distinguishable, and the ratio thereof has no applicability to the present situation because, in the said case, the order under challenge was one rejecting the application moved under Order VII Rule 10 or under Order VII Rule 11(d) of the CPC. Paragraph No. 17, relied upon by the respondents for canvassing their submission, reads as under:

"17. Sub Section 1A of Section 13 provides that a person aggrieved by a judgment or order can file an appeal, however, the said provision is to be read in conjunction with the proviso which specifically states that an appeal shall lie only from orders which are specifically enumerated under Order XLIII of the CPC. The occurrences of the expression "shall" and "specifically" in the proviso has to be noted for correctly understanding the legislative intent in framing the scheme of Section 13 of the Act of 2015. It is also noteworthy that the order under challenge in this appeal has been passed by the learned trial court rejecting the Application moved by the Defendants under Order VII Rule 10 and Rule 11(d) of the CPC. Such an order is not enumerated in Order XLIII of the CPC, though Rule 1(a) of Order XLIII enlists an order passed under Order VII Rule 10 for returning the

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plaint. Thus, Order XLIII enlists the order passed on an Application under Order VII Rule 10 if it is allowed; however, it does not enlist the order in case such an Application is rejected. Order XLIII also does not enlist any order passed on an Application under Order VII Rule 11(d) of the CPC."

[Emphasis supplied]

19. A bare reading of the above paragraph makes it manifest that the said case involved a challenge to an order rejecting application(s) under Order VII Rule 10 and Order VII Rule 11(d) of the CPC, which order(s) are not enumerated under Order XLIII of the CPC. Thus, there cannot be any quarrel with the proposition that such an order would not be amenable to an appeal under Section 13(1A) of the CCA, 2015, and rather, can be challenged by filing a revision or a petition/application under Article 227 of the Constitution of India, as the case may be."

13. In the case of Kandla Export Corporation

(supra), the Hon'ble Supreme Court had considered the

question of maintainability of appeal under Section 13(1)

of the Act of 2015, which was not otherwise maintainable

under Section 50 of the Arbitration and Conciliation Act,

1996. In paragraph Nos.14 and 15 of the order passed in

Kandla Export Corporation (supra) case, it is observed

as follows:

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"14. Section 13(1) of the Commercial Courts Act, with which we are immediately concerned in these appeals, is in two parts. The main provision is, as has been correctly submitted by Shri Giri, a provision which provides for appeals from judgments, orders and decrees of the Commercial Division of the High Court. To this main provision, an exception is carved out by the proviso. The primary purpose of a proviso is to qualify the generality of the main part by providing an exception, which has been set out with great felicity in CIT v. Indo-Mercantile Bank Ltd., 1959 Supp (2) SCR 256 at 266-267, thus:

"The proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main enactment. Ordinarily it is foreign to the proper function of a proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment. "It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso". Therefore it is to be construed harmoniously with the main enactment. (Per Das, C.J. in Abdul Jabar Butt v. State of Jammu & Kashmir [(1957) SCR 51, 59]). Bhagwati, J., in Ram Narain Sons Ltd. v. Assistant Commissioner of Sales Tax [(1955) 2 SCR 483, 493] said:

"It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other."

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Lord Macmillan in Madras & Southern Maharatta Railway Co. v. Bezwada Municipality [(1944) LR 71 IA 113, 122] laid down the sphere of a proviso as follows:

"The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case. Where, as in the present case, the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it by implication what clearly falls within its express terms."

The territory of a proviso therefore is to carve out an exception to the main enactment and exclude something which otherwise would have been within the section. It has to operate in the same field and if the language of the main enactment is clear it cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactment clearly says unless the words of the proviso are such that that is its necessary effect. (Vide also Corporation of City of Toronto v. Attorney- General for Canada [(1946) AC 32, 37].)"

15. The proviso goes on to state that an appeal shall lie from such orders passed by the Commercial Division of the High Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908, and Section 37 of the Arbitration Act. It will at once be noticed that orders that are not specifically enumerated under Order XLIII of the CPC would, therefore, not be appealable, and appeals that are mentioned in Section 37 of the Arbitration Act alone are appeals that can be made to the Commercial Appellate Division of a High Court."

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14. The question that fell into consideration in the

case of Trinetramilan Product Protection Solutions

Private Limited (supra), is whether against an order

passed under Order VII Rule 10 of CPC, 1908 an appeal

was maintainable under the provisio to Section 13(1A) of

Act of 2015 or not.

15. This Court placing reliance on the judgment of

the Hon'ble Supreme Court in Kandla Export

Corporation (supra) has held that as against the order