SRJ 1 wp-9293-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.9293 OF 2009 Shri Jayant D. Panse .. Petitioner V/s. Shri Suvarna Sahakari Bank Ltd., & Others .. Respondents. Mr. Sagar Kasar, for Petitioner. Mr N.K.Khasbarkar, for Respondent No.1. CORAM :A.S.OKA,J. DATE :7th APRIL,2010 P.C.:- 1] On 28th January, 2010, notice for final disposal of Writ Petition at admission stage was issued. I have heard learned Counsel appearing for the parties. 2] The Petitioner is the Plaintiff and the 1st Respondent is the 1st Defendant. A suit was filed by the Petitioner for declaration that recovery certificate issued by the Assistant Registrar of Co-operative Societies in favour of the 1st Respondent under the provisions of Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as the said Act ) is null and void and not binding on the Petitioner. A consequential relief of injunction was claimed by the Petitioner. The 1st Respondent contested the suit by filing Written Statement. SRJ 2 wp-9293-09.sxw A contention was raised in the Written Statement that the suit was barred by the provisions of sub-section 3 of section 163 of the said Act. On the basis of the objection raised by the 1st Respondent by filing an application at Exhibit 24, the Trial Court framed a preliminary issue of jurisdiction. By judgment and order dated 19th July, 2008, the Trial Court held that a Civil Court had no jurisdiction to entertain and try the suit. The operative part of the said order dated 19th July, 2008 reads thus:- ORDER 1. Application Exhibit 24 is hereby allowed by holding that this court is having no jurisdiction to try and entertain the present suit. 2. Plaint be returned to the plaintiff under order VII, Rule 11 of the Code of Civil Procedure. 3] An Appeal purporting to be an Appeal under clause (a) of the Rule 1 of the Order XLIII of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code ) was preferred by the Petitioner. The Appeal proceeds on the footing that the order of the Trial Court was one of return of the Plaint. In the said Appeal preferred by the Petitioner, the 1st Respondent contended that the appeal was not maintainable under Order XLIII as the order of the Trial Court was of rejection of the plaint. By the impugned order dated 2nd March, 2009, the learned District Judge held that the appeal was not SRJ 3 wp-9293-09.sxw maintainable under Order XLIII of the said Code. As the impugned order of the Trial Court clearly indicates that it is an order of the rejection of plaint, the learned District Judge held that an appeal was maintainable under order XLI of the said code. 4] The submission of the learned Counsel appearing for the Petitioner is that since order dated 19th July, 2008 passed by the Trial Court purported to return the plaint, the Petitioner was advised to prefer an appeal under clause (a) of Rule 1 of Order XLIII of the said Code. He submitted that if the order was of rejection of the Plaint, the appeal could have been treated as an appeal under section 96 of the said Code. The learned Counsel appearing for the contesting Respondent No.1 invited my attention to the findings recorded in paragraph 9 of the order dated 19th July, 2008 and submitted that the order of the Trial Court is clearly of rejection of plaint as what has been held is that the suit was barred under sub-section 3 of the Section 163 of the said Act. He, therefore, submitted that the learned District Judge was right in taking view that as the impugned order was of rejection of the plaint, it is a decree and therefore, an Appeal against Order was not maintainable. 5] I have given careful consideration to the submissions. It cannot be disputed that an Appeal from Order has been provided under clause (a) of Rule 1 of Order XLIII of the said Code against an order of return of plaint passed under Rule 10 of Order VII of the said Code. SRJ 4 wp-9293-09.sxw An order of rejection of plaint under Rule 11 of Order VII of the said Code is a decree in view of definition under section 2(2) of the said Code. Therefore, an appeal under section 96 of the of the said Code is maintainable against an order of rejection of plaint. 6] The operative part of the aforesaid order of the Trial Court creates some confusion due to the clause 2 thereof. The clause 2 of the operative part clearly directs the return of the Plaint. However, the latter part of the clause 2 refers to Rule 11 of Order VII of the said Code which confers a power on the Court to reject the plaint. Considering the reference to  return of the plaint, it appears that the Petitioner might have carried an impression that an appeal under order XLIII, Rule 1(a) was maintainable. Accordingly an appeal was filed which was registered as a Miscellaneous Civil Appeal as per the procedure followed by the District Courts. Perusal of the order of the trial Court dated 19th July, 2008 clearly shows that the learned Trial Judge rejected the plaint as he was of the view that the bar under sub-section 3 of section 163 of the said Act is attracted. Therefore, the learned Trial Judge held that a Civil Court had no jurisdiction to entertain the suit. Perusal of the reasons recorded in paragraph 9 of the order shows that the learned Trial Judge was of the view that a civil suit was barred and hence the plaint will have to be rejected. An order of return a plaint is passed when the Court finds that the suit has been instituted in the Court having no SRJ 5 wp-9293-09.sxw territorial or pecuniary jurisdiction. Interpretation of the order of the Trial Court made learned District Judge appears to be correct. The impugned order of the Trial Court was of rejection of the plaint. The controversy arose because of the peculiar nature of clause 2 of the operative order of the Trial Court. The learned District Judge came to the correct conclusion that the appeal was not maintainable under order XLIII. After coming to this conclusion, an opportunity ought to have been given by the learned District Judge to the Petitioner to apply for converting the appeal into one under section 96 of the said Code. The said power could have been always exercised by the learned District Judge under section 151 read with 153 of the said Code. Such approach ought to have been adopted to avoid multiplicity of the proceedings. 7] The learned Counsel appearing for the Petitioner prays that the appeal be converted into an appeal under section 96 of the said Code. The said prayer deserves to be accepted. The learned Counsel appearing for the contesting Respondent submitted that there is no merit in the appeal in view of the bar created by sub-section 3 of Section 163 of the said Act. An order of rejection of the Plaint is a decree and, therefore, this issue on merits of the suit will have to be gone into in the Appeal. SRJ 6 wp-9293-09.sxw 8] Hence, Petition is disposed of by passing the following order:- (i) The impugned judgment and order dated 2nd March, 2009 is quashed and set aside and Misc. Civil Appeal No.320 of 2008 is restored to the file of the District Court. The learned District Judge on a formal application in writing made by the Petitioner, shall convert the said appeal into an appeal under section 96 of the said Code. The Petitioner will have to pay deficit court fees if any, within a period of four weeks from the date on which the conversion of the appeal is allowed by the District Court. (ii) As the original appeal preferred by the Petitioner was within the stipulated period of limitation, the date of preferring the appeal under section 96 of the said Code shall be treated as the date on which the original appeal was filed; (iii) All contentions on the merits of the order of Trial Court are expressly kept open. (iv) The Appellate Court will register the appeal and will proceed to decide the the same as early as possible. (v)] Writ Petition is partly allowed in the above terms with no order as to costs. (A.S.OKA,J.)