CIVIL REVISION N0.167 OF 2004 (Against the order dated 16.12.2003 passed by Sub-Judge IVth, Patna, in T.S. No. 151 of 1997) Meera Sinha, D/o Late Rameshwar Prasad Sinha, resident of village- Arara, P.S.Hajipur, District- Vaishali, and Wife of Late Ram Narayan Roy, resident of Village - Bachari,P.S.-Piro, District Bhojpur. ---------(Plaintiff, Petitioner) Versus (1) Girja Sinha, W/o Shri Ramdas Roy, resident of Village- Bachari, P.S.-Piro, District- Bhojpur, At present residing at Qarter No. 3 Bihar Vidhyapith Sadakat Ashram, P.S.- Patliputra, District-Patna. (2) Krishnajeet Ranjan S/o Late Ram Narayan Roy, resident of Village-Bachari, P.S.-Piro, District-Bhojpur, At present residing at Mohalla-Nehru Nagar, House No. 243, P.S.-Patliputra, District-Patna. ---------(Defendant, Opposite Parties) For the Petitioner : Mr. V. Nath, Advocate Mr. Ashok Kumar, Advocate Mr. Ajay Kumar Singh, Advocate Mr. W. Rahman, Advocate. For Opp. Parties : Mr. Siddheshwari Pd. Sinha, Sr. Advocate Mr. Kalyan Shankar, Advocate. P R E S E N T THE HON'BLE MR. JUSTICE CHANDRAMAULI KUMAR PRASAD THE HON'BLE MR. JUSTICE SUBASH CHANDRA JHA ------------------------- Prasad & Jha, JJ. Plaintiff/petitioner, aggrieved by the order dated 16.12.2003 passed by the Subordinate Judge- IVth, Patna, in Title Suit No. 151 of 1997, rejecting the plaint under Order VII Rule 11 of the Code of Civil - 2 - Procedure, has preferred this civil revision application under Section 115 of the Code of Civil Procedure (hereinafter referred to as the Code). The Stamp Reporter has objected to the maintainability of the civil revision application and according to it rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure is a decree within the meaning of Section 2 (ii) of the Code and as such appeal would lie. Petitioner contested the stamp report. By order dated 11.10.2004 without adjudicating the question of maintainability of the civil revision application the civil revision application was admitted for hearing. Ultimately, matter came up for consideration before the learned Single Judge on 18.04.2006. In its opinion there is apparent conflict between the Division Bench judgment of this Court in the case of Rameshwar Thakur and Ors. Vs. Bhagwati Devi and Ors. (1982 PLJR 167) and the Division Bench judgment of this Court in the case of Ravneshwar Thakur and Ors. Vs. Neeraj Kumar Thakur and Ors., (1996 (1) PLJR 494). - 3 - Accordingly, the learned Single Judge referred the matter to be adjudicated by a larger Bench. Under the orders of Hon‟ble the Chief Justice this application has come for consideration before us. Short facts giving rise to the present application are that the plaintiff filed the suit for declaration of title and possession of the suit land and also sought declaration that the Ladavi deed dated 15.11.1999 executed by defendant no. 2 in favour of defendant no. 1 is void, fraudulent, illegal and inoperative. Plaintiff also sought ad interim injunction against defendant no. 1 from interfering with his possession. Defendant No. 1 appeared in the suit and filed an application under Order VII Rule 11 of the Code of Civil Procedure (hereinafter referred to as the Code) for rejection of the plaint. Subordinate Judge-IV, Patna, by the impugned order rejected the plaint inter alia holding that the document was fraudulently and collusively created and the registration of the document at Calcutta is in teeth of law. It also held that the plaint has been presented on insufficient stamp paper and it is - 4 - also hit by the law of limitation. It is common ground that after rejection of the plaint decree has been drawn. Mr. V. Nath appears for the petitioner. In fairness to him, he submits that in view of Section 2 (ii) of the Code, rejection of plaint under Order VII Rule 11 of the Code is a decree but the trial court has disposed of the case on a preliminary point without deciding the dispute on merit, the rejection of the plaint will not amount to decree as there was no determination of the rights of the parties. In support of his submission he has placed reliance on a Division Bench Judgment of this Court in the case of Ravneshwar Thakur and Ors., (supra), and our attention has been drawn to paragraph 15 of the judgment which reads as follows: “In the above premises I would hold that rejection of memorandum of appeal on the ground of limitation is not appealable in all the cases. Where the appeal is against a decision of the trial court on merits, that is, where the trial court has decided the dispute on merit or, in other words, „determined the rights of the parties‟, such rejection could amount to „decree‟ and be, therefore, appealable. Where, however, the trial court has disposed of the case on a preliminary point or on technical - 5 - ground without deciding the dispute on merit, the „in limine‟ rejection of the memorandum will not amount to decree as there was no „determination of the rights of the parties‟ by the trial court and the principle laid down in Sheodan Singh‟s case will not be applicable. In such cases revision will be maintainable. The question is answered accordingly.” Reliance has also been placed on a decision of the Supreme Court in the case of Ratan Singh Vs. Vijay Singh & Ors. reported in (2001) 1 Supreme Court Cases, 469, and we have been invited to Paragraph 11 of the said judgment, it reads as follows: “In order that a decision of a court should become a decree there must be adjudication in a suit and such adjudication must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit and such determination must be of a conclusive nature. If those parameters are to be applied then rejection of application for condonation of delay will not amount to a decree. Consequently, dismissal of an appeal as time-barred is also not a decree. We are aware that some decisions of the High Courts have taken the view that even rejecting an appeal on the ground that it was presented out of time is a decree within the meaning of the said definition. We are also aware of the contrary decisions rendered by High Courts on the same point. Dealing with some of those decisions a Full Bench - 6 - of the Calcutta High Court [S.P. Mitra, CJ., Sabyasachi Mukherjee, J. (as he then was) and S.K. Dutta, J.] has held in Mamuda Khateen Vs. Beniyan Bibi that “if the application under Section 5 of the Limitation Act was rejected the resultant order cannot be a decree and the order rejecting the memorandum of appeal is merely an incidental order”. The reasoning of the Full Bench was that when an appeal is barred by Limitation the appeal cannot be admitted at all until the application under Section 5 of the Limitation Act is allowed and until then the appeal petition, even if filed, will remain in limbo. If the application is dismissed the appeal petition becomes otiose. The order rejecting the memorandum of appeal in such circumstances is merely an incidental order. We have no doubt that the decisions rendered by the High Courts holding the contrary view do not lay down the correct principle of law.” To drive home the point, Mr. Nath has also placed reliance on a decision of the Supreme Court in case of Prem Bakshi and Ors. Vs. Dharam Dev and Ors., reported in AIR 2002 Supreme Court, 559, and our attention has been drawn to the following passage from Paragraph 5 of the judgment which reads as follows: “By way of illustration we may say that if a trial Court holds by an interlocutory order that it has no jurisdiction to proceed with the case or that suit is - 7 - barred by limitation, it would amount to finally deciding the case and such order would be revisable.” Reliance has also been placed on a judgment of the Supreme Court in the case of Vidyodaya Trust and Ors. Vs. Mohan Prasad and Ors., reported in (2006) 7 Supreme Court Cases 452, and reference has been made to Paragraph 11 of the judgment, which reads as follows: “Judged in the aforesaid background the view of the learned Single Judge that the civil revision was not maintainable is clearly indefensible. Learned counsel for the respondent has fairly conceded to this position. If it is held that the suit in terms of Section 92 CPC is not maintainable, that would have the result of final disposal of the suit. However, the learned counsel made an attempt to justify the order by stating that the matter was also dealt with on merits. That would not improve the situation. The civil revision was clearly maintainable. Therefore, we allow the appeal so far as it relates to Civil Revision Petition No. 1260 of 2003 disposed of by the judgment dated 5.2.2004 by the High Court. The said order is set aside.” Mr. Siddheshwari Prasad Sinha, Senior Advocate appearing on behalf of the opposite party, however, contends that rejection of the plaint amounts - 8 - to decree and once it is held so, an appeal would lie. Neither on principle nor precedents, we are inclined to accept the submission of Mr. Nath. It is common ground that the plaint has been rejected under Order VII Rule 11 of the Code of Civil Procedure. Section 2 (ii) of the Code defines „decree‟, it reads as follows: Definitions – In this Act, unless there is anything repugnant in the subject or context- x x x x x x x x x x (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 - 9 - before the suit can be completely disposed of. It is final when such adjudication completely diposes of the suit. It may be partly preliminary and partly final: x x x x x x x x It is an inclusive definition and the rejection of the plaint by legal fiction has been deemed a decree. Once it is held that the rejection of the plaint is a decree, the natural corollary of the same shall be that an appeal would lie. In view of the language of Section 2 (2) of the Code, order rejecting the plaint has got to be treated as decree. Thus on principles we are of the opinion that rejection of a plaint, being a decree, there is no escape from the conclusion that an appeal would lie. Now we proceed to consider the precedent on this question. A Division Bench of this Court in the case of Rameshwar Thakur and Ors.,(supra), has held as follows: “Order VII, Rule 11 of the Code of Civil Procedure contemplates various circumstances under which a plaint has to be rejected by the court and one of the circumstances is mentioned in clause (d) with which we are concerned in this case which reads as follows: “Where the suit appears from - 10 - the statement in the plaint to be barred by any law.” This, at once, brings us to the definition of the term „decree‟, i.e. to the definition namely, section 2 (2), which include “rejection of the plaint and determination of any question within section 144 ……” within its fold. It is, therefore, obvious that an order rejecting the plaint has got to be treated as a decree and it will be subject to all these consequences applicable to a decree of the Civil Court, one of them being a right of appeal under Section 96. From the above provisions, it is quite apparent and obvious to us that the order under revision rejecting the plaint amounted to a decree within the meaning of section 2 (2) of the Code and, therefore, was an appealable order and inasmuch as the valuation of the suit is less than rupees ten thousand, an appeal against the order lies before the District Court.” (underlining ours) The Supreme Court had the occasion to consider this question in the case of Shamsher Singh vs. Rajinder Prashad and Ors., reported in AIR 1973 Supreme Court 2384, and has categorically held that an order rejecting a plaint is appealable as a decree, the relevant portion of which reads as follows: “In the present case the plaint was rejected under Order VII, Rule 11 of the CPC. Such an order amounts to a decree under Section 2 (2) and there is - 11 - right of appeal open to the plaintiff. Furthermore, in a case in which this court has granted special leave the question whether an appeal lies or not does not arise. Even otherwise a second appeal would lie under S. 100 of the CPC on the ground that the decision of the 1st Appellate Court on the interpretation of Section 7(iv) (e) is a question of law. There is thus no merit in the preliminary objection.” (Underlining ours) A learned Single Judge of this Court in the case of Ajay Kumar and Shia Devi and another vs. Chairman and others reported in 1992 (2) PLJR 356, has also held that order rejecting the plaint under order VII, Rule 11 of the Code is nothing but a decree and no civil revision application would lie before this Court. While coming to this conclusion, the learned Single Judge had relied on a decision of the Supreme Court in the case of Shamsher Singh (supra), as also the Division Bench judgment of this Court in the case of Rameshwar Thakur (supra), relevant portion of the judgment of this Court in the aforesaid case reads a follows: “However, I am of the view that the impugned order rejecting the plaint under Order VII Rule 11 of the Code amounts to a decree and no Civil Revision application lies before this - 12 - Court. Such is the ratio decidendi of this Court in his decision reported in AIR 1941 Patna 385 and AIR 1982 Patna 75 and even of Supreme Court reported in AIR 1973 Supreme Court 2384 (Paragraph 4). Accordingly, I accept the stamp report and hold that these Civil Revision applications are not maintainable.” These precedents and authorities also lend support to the proportion that an order rejecting the plaint has got to be treated as decree and it shall be subject to all the consequences applicable to a decree, including the right to appeal. Relying on precedents we are inclined to take a view that rejection of the plaint amounts to a decree and no civil revision would lie against such order and the remedy is to file an appeal. Now, referring to the decisions relied on by Mr. Nath, same are clearly distinguishable. In the case of Ravneshwar Thakur (supra), the Division Bench was considering as to whether an order dismissing an appeal on account of limitation being time barred would be appealable or revisable. In the background of the facts thereof, the Division Bench - 13 - held that rejection of the memorandum of appeal without deciding the dispute on merit will not amount to decree, which is not the case here. For the same reasons, the decision of the Supreme Court in the case of Ratan Singh (supra), is also distinguishable. In the case of Prem Bakshi (supra), the Supreme Court was not considering as to whether the rejection of the plaint under Order VII Rule 11 of the Code would be a decree or not but the question was as to whether the decision on the point of jurisdiction to proceed with the case would amount to finally deciding the case or not. In this case it has been held that same would amount to finally deciding the case and hence order would be revisable. The decision of the Supreme Court in this case thus has to be understood in the context it was rendered and from that it cannot be deciphered that the civil revision would lie against an order rejecting the plaint. Reliance of the petitioner in the case of Vidyodya Trust (supra) is also mis-conceived. In this - 14 - case the High Court dismissed the civil revision application as not maintainable as in its opinion the order impugned was an interlocutory order. This would be evident from Paragraph 4 of the judgment which reads as follows: “Questioning the correctness of the order, a petition for revision in terms of Section 115 CPC was filed. The High Court dismissed the civil revision petition on the ground that the same was not maintainable. Though the High Court made reference to some factual aspects, it ultimately came to hold that the revision petition was not maintainable as order dated 11.4.2003 was an interlocutory one. Thereafter, the appellants filed writ petition before the High Court praying, inter alia, for writ, direction or order, questioning the order dated 2003. By order dated 20.8.2004 the High Court dismissed the writ petition holding that the view taken in the civil revision apparently was not correct, as by no stretch of imagination can it be held that the High Court had no jurisdiction. It accepted the stand of the respondents herein that since there was discussion on merits, though the petition was not held to be maintainable, subsequent proceedings initiated under Article 227 of the Constitution of India.” (Underlining ours) In the background of the above, the Supreme Court held that the conclusion of the High Court was - 15 - indefensible. Here we are not concerned with this question at all. Question before us is not as to whether the rejection of the plaint is an interlocutory order or not. Thus none of the decisions relied on by the petitioner support its contention. We have not found any conflict between the decision of this Court in the case of Rameshwar Thakur (supra) and Ravneshwar Thakur (supra). We are of the considered opinion that an order rejecting the plaint is nothing but a decree and as such shall not be revisable under Section 115 of the Code but shall be appealable under Section 96 thereof. Petitioner, if so desires, may seek remedy of appeal and pray for condonation of delay on the ground that she was persuing the civil revision application on a bonafide wrong legal advice. The very fact that the case has been referred on the question of maintainability before the Division Bench, one can assume that it is a bonafide application. In case the petitioner files an appeal and - 16 - prays for condonation of delay in filing the appeal the appellate Court shall bear that in mind. In the result, the Civil Revision application is dismissed as not maintainable, but without any order as to cost. Patna High Court, the 16th day of Oct. 2008,AFR Sanjeet (Chandramauli Kr. Prasad, J.) (Subash Chandra Jha, J.)