Madras High Court
T.Kumar vs Pavai Varam Educational Trust on 1 December, 2022
C.R.P.No.3671 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.12.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.R.P.No.3671 of 2022
T.Kumar ... Petitioner
vs
Pavai Varam Educational Trust:
Rep. by its Chairman and Managing Trustee,
V.Natarajan, S/o.R.Varadappan,
D.No.64-C, Rotary Nagar,
Namakkal Road, Rasipuram – 637408. ... Respondent
Prayer: Civil Revision Petition is filed under Article 227 of the Constitution
of India, praying to set aside the fair and decreetal order dated 30.08.2022
passed by the learned Principal District Judge, Namakkal, made in
unnumbered suit /2022 (C.R.No.5805 of 2022) and consequently number
the suit by taking the plaint on record.
For Petitioner : Mr.S.Parthasarathy
Senior Advocate
for P.Dinesh Kumar
1/8
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C.R.P.No.3671 of 2022
ORDER
Aggrieved by an order rejecting the plaint in unnumbered O.S.No. .... of
2022 on the file of the learned Principal District Judge, Namakkal, the
petitioner/plaintiff has come up by way of this revision.
2. The petitioner herein filed a suit seeking specific performance of the
Contract dated 25.04.2016 against the respondent in unnumbered O.S.No. ....
of 2022. The Court below by impugned order rejected the plaint on the
ground that the petition filed by the petitioner seeking permission of the Court
to sell the property was already dismissed by the Court and also on the
ground of limitation. Aggrieved by the same, the petitioner/plaintiff is before
this Court.
3. As per the definition of the expression “decree” in the Code of Civil
Procedure, an order rejecting the plaint is a deemed decree. It would be useful
to refer the definition of the expression decree in the Code of Civil Procedure
which reads as follows:-
“(2) "decree" means the formal expression of an
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C.R.P.No.3671 of 2022
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;”
4. Therefore, as per the definition of the expression 'decree' as found in
Code of Civil Procedure, by virtue of inclusive definition, the expression
'decree' deemed to include the rejection of plaint. Once we come to the
conclusion an order of rejection of plaint is a deemed decree under Code of
Civil Procedure, a regular appeal will lie against any decree under Section 96
of Code of Civil Procedure. Therefore, the petitioner is not entitled to invoke
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C.R.P.No.3671 of 2022
the supervisory jurisdiction of this Court, when a regular appeal remedy is
available under Section 96 of Code of Civil Procedure.
5. The learned counsel for the petitioner submitted that only in cases
where the plaint is rejected after numbering of the suit, it can be treated as
deemed decree. In the case on hand, the plaint has been rejected even without
numbering and therefore, the petitioner is entitled to invoke the supervisory
jurisdiction under Article 227 of Constitution of India.
6. The contention of the learned counsel for the petitioner cannot be
accepted in the light of the clear wordings of Section 2(2) of Code of Civil
Procedure. The definition of the expression 'decree' contains three limbs:
(i) The first limb of the definition defines the expression decree by words;
(ii) The second limb of definition is an inclusive definition, it brings an
order rejecting the plaint and an order determining any one of the
questions under Section 144 of CPC within the fold of definition of
decree.
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C.R.P.No.3671 of 2022
(iii) The third limb of definition is an exclusive definition, it excludes any
adjudication from which an appeal shall lie as an appeal from an order
and any order dismissing the suit for default from the purview of
definition of expression 'decree'.
7. A close scrutiny of the definition of the expression 'decree' would
make it clear that the draft man himself had a doubt that order of rejection of
plaint may not come within the wordly definition of the expression 'decree'.
Since it will not come within the definition as found in first limb of Section
2(2) of CPC, he had chosen to bring it under the inclusive definition by
including it in the second limb of definition. Therefore, Section 2(2) of Code
of Civil Procedure does not make any distinction between the rejection of
plaint before numbering and after numbering. In such case, an order of
rejection of plaint even before numbering of the same, shall be treated as a
deemed decree and consequently the revision is not maintainable, in view of
availability of regular appeal remedy under Section 96 of CPC.
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C.R.P.No.3671 of 2022
8. It is also useful to refer to the judgement of this Court reported in
MANU/TN/2570/2016 (A.Ramanathan vs. Tamarai Mills Ltd) wherein this
Court after referring to the unreported judgement of the Division Bench of this
Court made in C.R.P.(PD).No.1211 of 2013 dated 28.08.2014 observed as
follows:-
“12. The Division Bench of this Court, in the unreported
Judgment dated 28.08.2014 referred supra, has clearly held
that if a Court of Law passes an order for rejection of plaint,
under Order 7 Rule 11 of Civil Procedure Code, it has the force
of “Decree” and therefore, regular “Appeal” lies under Civil
Procedure Code and in fact, no “Revision” would lie.”
9. In view of the discussions made above, this Court has no hesitation
in holding that this Civil Revision Petition challenging the order passed by the
Court below rejecting the plaint in unnumbered stage is not maintainable.
10. Accordingly, the Civil Revision Petition is dismissed with liberty to
the revision petitioner to file regular appeal challenging the order of rejection
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C.R.P.No.3671 of 2022
of plaint treating it as a decree. It is needless to say that the petitioner is
entitled to exclude the time taken by him in bonafidely prosecuting the Civil
Revision Petition before this Court by filing appropriate application under
Section 14 of the Limitation Act, 1963. No costs.
01.12.2022
Index : Yes / No
Speaking Order : Yes / No
dm
Note: The Registry is directed to return the copy of the
original impugned order dated 30.08.2022 made in
unnumbered O.S.No. .... of 2022 (C.R.No.5805 /
dated 01.08.2022) to the learned counsel for the
petitioner.
To
The Principal District Judge,
Namakkal.
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C.R.P.No.3671 of 2022
S.SOUNTHAR , J.
dm
C.R.P.No.3671 of 2022
01.12.2022
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