Madras High Court

Sulaiman vs Alagesan on 17 October, 2024

Author: A.D.Jagadish Chandira

Bench: A.D.Jagadish Chandira

                                                                                     C.R.P.No.4072 of 2024




                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 17.10.2024

                                                       CORAM :

                        THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA

                                                 C.R.P.No.4072 of 2024

                Sulaiman                                                           ... Petitioner
                                                            Vs
                Alagesan                                                           ... Respondent

                PRAYER : Civil Revision Petition filed under Article 227 of the Constitution of
                India, pleased to set aside the order dated 23.07.2024 passed in the the unnumbered
                O.S.No......... of 2024 by the Principal District and Sessions Court, Kallakurichi.

                                      For Petitioner    :   Mr.K.Sathiyabai

                                                       ORDER

This Civil Revision Petition has been filed against the order passed by the

Principal District and Sessions Court, Kallakurichi, on 23.07.2024 in the

unnumbered O.S.No......... of 2024.

2. The brief facts of the case is that the petitioner/plaintiff has filed an

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original suit before the Principal District and Sessions Court, Kallakurichi against

the respondent/defendant seeking for recovery of money for a sum of

Rs.28,90,583/- in respect of the rice supplied under various invoices on credit

basis. The trial Court had returned the plaint in respect of the maintainability of the

suit on the ground of limitation and thereafter, the suit was rejected as barred by

time, after hearing the learned counsel for the plaintiff in the open Court on

23.07.2024. Challenging the same, the present Civil Revision Petition has been

filed.

3. Learned counsel for the petitioner submitted that the impugned order

rejecting the plaint under Order VII Rules 11 of CPC, even prior to number the

same suffers from illegality and improper exercise of jurisdiction and it is liable to

be set aside. He further submitted that the Court cannot conduct a trial with regard

to the limitation and reject the plaint before numbering the same. In support of his

contention, he relied on the judgment passed by this Court in the case of Selvaraj

and Others vs. Koodankulam Nuclear Power Plant India Limited and others

reported in (2021) 3 LW 677.

4. Heard the learned counsel appearing for the petitioner and perused the

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materials available on record.

5. This Court is of the opinion that an order of rejecting the plaint would

amount to be a decree under Section 2(2) of CPC and against the order of rejection,

only an appeal will lie and the revision under Article 227 of the Constitution of

India is not maintainable. Even in the judgment passed by this court in Selvaraj's

case ( referred supra), this Court has held that the suit can be rejected under Order

VII Rule 1(f) even during the pre-registering stage and in such circumstances, the

matter must be posted before the open Court and the judgment may be passed after

hearing the counsels on both sides. In this matter, the learned counsel for the

plaintiff was heard and only thereafter, the order of rejection has been passed.

Therefore, the order of rejection is deemed to be a decree under Section 2(2) of

CPC and in such circumstances, only an appeal is maintainable and not revision

under Article 227 of the Constitution of India.

6. It is useful to refer the judgment rendered by this Court in C.R.P.No.3671

of 2022 on 01.12.2022. The relevant paragraphs are extracted hereunder :-

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“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 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 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

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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.

(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.

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:-

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“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.””

7. In view of the above, this Court has no hesitation in holding that the Civil

Revision Petition, challenging the order passed by the Court below rejecting the

plaint in unnumbered stage, is not maintainable.

8. At this juncture, the learned counsel for the petitioner submitted that the

proper forum for filing the appeal is this Court. He further submitted that the copy

application was made before the trial Court on 26.07.2024 and the copy was made

ready on 16.08.2024 and the present revision petition has been filed before this

Court within the period of limitation. Therefore, he prayed that the time taken by

the petitioner in bonafidely prosecuting the Civil Revision Petition before this

Court may be excluded under Section 14 of the Limitation Act.

9. Accordingly, the Civil Revision Petition is disposed of with a liberty to

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the revision petitioner to file a regular appeal challenging the order of rejection 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.

10. Registry is directed to return the original papers to the counsel for the

petitioner forthwith after substituting the same with a xerox copy and the

petitioner shall file the Appeal within a period of two weeks from thereafter.