Madras High Court
G.Thangaraj vs State Of Tamil Nadu on 11 September, 2024
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
C.R.P.No.3553 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.09.2024
CORAM :
THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA
C.R.P.No.3553 of 2024
1. G.Thangaraj
2. Poongodi ... Petitioners
Vs
1. State of Tamil Nadu,
Represented by the District Collector,
Salem.
2. The Revenue Divisional Officer,
Attur.
3. The Tahsildar,
Attur.
4. The Village Administrative Officer,
Paithur (North), Attur Taluk. ... Respondents
PRAYER : Civil Revision Petition filed under Article 227 of the Constitution of
India, pleased to set aside the docket order dated 08.08.2024 in O.S.SR.No.7794
of 2024 on the file of Subordinate Court, Attur, Salem District.
1/9
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C.R.P.No.3553 of 2024
For Petitioners : Mr.D.Shivakumaran
For Respondents : Mr.Abishek Murthy
Government Advocate
ORDER
This Civil Revision Petition has been filed against the docket order passed
by the Subordinate Court, Attur, Salem District, on 08.08.2024 in
O.S.SR.No.7794 of 2024.
2. The brief facts of the case is that the petitioners/plaintiffs have filed a suit
before the Subordinate Court, Attur on 18.07.2024 against the respondents seeking
to declare that the plaintiffs have acquired and preferred title to the suit properties
by adverse possession and to grant permanent injunction restraining the
respondents/defendants and their men in any way interfering with the plaintiffs'
possession and enjoyment of the suit properties. The said suit was returned on
23.07.2024 stating that “the suit property belongs to the Government at this
stage, how this suit is maintainable” and on 24.07.2024, the plaintiffs has
represented the suit as follows :-
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“The plaintiffs claim to have perfected their title
by adverse possession for more than the statutory
period of 30 years. Only because the suit property
originally belonged to the State Government and is now
mentioned in the revenue accounts as the property of
State Government the suit is filed claiming title under
the law and principle of adverse possession. The
authority by the Supreme Court reported in 2019 SAR
(Civil) 945 is squarely on the point. The principle of
adverse possession arises only on the basis of title in
the opposite party initially till it was acquired by the
plaintiffs by adverse possession. This position is made
clear in para VIII of the plaint. Hence the suit may be
numbered and further proceedings ordered.”
Thereafter, once again on 25.07.2024, the suit was returned by the learned
Subordinate Judge, Attur and the petitioners/plaintiffs have represented the same
on 29.07.2024. Thereafter, the case was taken up in the open Court and after a
detailed hearing, an impugned order came to be passed by the learned trial Judge
on 08.08.2024 rejecting the plaint. Challenging the same, the present Civil
Revision Petition has been filed.
3. Learned counsel for the petitioners 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
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be set aside. He further submitted that the Court cannot conduct a trial and seek
for documents as proof even 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. Per contra, the learned Government Advocate submitted that the order
under challenge is an order of rejecting the plaint, which amounts 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 cannot be
maintainable. He further submitted that 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 plaintiffs was heard, written arguments were filed 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
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circumstances, only an appeal is maintainable and not revision under Article 227
of the Constitution of India. In support of his contention he relied upon the
judgment of this Court in C.R.P.No.3671 of 2022 dated 01.12.2022.
5. Heard the learned counsel appearing for both sides and perused the
materials available on record.
6. It is seen that the suit filed by the petitioners/plaintiffs against the
respondents Government for declaration and permanent injunction was returned
and despite being represented twice, an order of rejection was passed on
08.08.2024 by the Subordinate Court, Attur, Salem District. It has been observed
by this Court in C.R.P.No.3671 of 2022 dated 01.12.2022 as follows :-
“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 [***]
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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
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
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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:-
“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.””
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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. Accordingly, the Civil Revision Petition is disposed of with liberty to the
revision petitioners to file regular appeal challenging the order of rejection of plaint
treating it as a decree. It is needless to say that the petitioners are 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.
11.09.2024
Index : Yes / No
Neutral Citation : Yes / No
ham
Note : Registry is directed to return the original papers to the
counsel for the petitioner forthwith.
To
The Subordinate Court, Attur, Salem District
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A.D.JAGADISH CHANDIRA, J.
ham
11.09.2024
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