RISHABH CHAND JAIN & ANOTHER versus GINESH CHANDRA JAIN
[2016] 2 S.C.R. 334, Supreme Court of India, 2016
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
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[2016] 2 S.C.R. 334 
RISHABH CHAND JAIN & ANOTHER 
v. 
GINESH CHANDRA JAIN 
(Civil Appeal No. 4543 of2016) 
APRIL 13,2016 
(KURIAN JOSEPH AND ROHINTON FALi NARIMAN, JJ.] 
Code of Civil Procedure, 1908: 
ss. 2(2), 96, 115, Order XIV r. I and Order XLI - Dismissal of 
suit - Without framing of issues - On the ground that th6 suit was 
barred by Res Judicata and the Jack of cause of action - High 
Court held that for dismissal of suit framing of issue is necessary 
whereas for rejection of plaint it is not - On appeal, held: The 
order of trial court though passed without framing of issues, 
conclusively determined the rights of the parties with regard to one 
of the matters in controversy i.e. Res Judicata -·Hence, such order 
is a decree - The order cannot cease to be a decree on account of 
procedural irregularity of non-framing an issue - Order of trial 
court was a composite order on rejection of plaint (since there was 
no cause of action) and dismissal of suit (since the same was not 
maintainable) - Both the wpects are covered by definition of decree 
- Thus, such order is appealable uls. 98 r!w Or. XL! of CFC -
Revision uA 115 CPC does not lie against the same. 
s. 2(2) - Decree - Meaning and Scope of - When the court 
conclusively determines the rights of the parties with regard to any 
one or more or all of the matters in controversy, requirement of 
decree is satisfied - Such determination can he preliminary or final 
- Rejection of plaint is
deemed to be a decree - However, any 
adjudication from which an appeal lies as an appeal from an order 
or an order of dismissal for default, is not a decree. 
Allowing the appeal, the Court 
·HELD: 1. In terms of Section 2(2) of CPC, if the court 
adjudicating the case, conclusively determines the rights of the 
parties with regard to any one or more or all of the matters in 
controversy in the suit, the requirement of decree is satisfied. 
Such determination can be preliminary or final. Rejection of a 
plaint is deemed to be a decree under Section 2(2) of CPC. Only 
334
RISHABH CHAND JAIN & ANOTHER v. GINESH CHANDRA 335 
JAIN 
two orders are excluded-(i) auy adjudication from which an appeal 
lies as an appeal from an order and (ii) any order of dismissal for 
default. [Para 14] [339-G-H; 340-A] 
2. Order XLIII of CPC bas provided for appeals from 
orders. The impugned order does not come under Order XLIII. 
The order has conclusively determined the rights of the parties 
with regard to one of the matters in controversy iu the suit, viz., 
Res J11dicat11. True, it is not an order passed on framing an issue. 
But at the same time, there is adjudication on the controversy as 
to whether the suit is barred by Res J11dicma in the sense there 
is a judicial determination of the controversy after referring to 
the materials on record and after bearing both sides. The 
impugned order dismissing the suit on the ground of Res J11dicata 
does not cease to be a decree on account of a procedural 
irregularity of uou-framing an issue. The court ought to treat the 
decree as if the same bas been passed after framing the issue 
and on adjudication thereof. In such circumstances, what is to be 
seen is the effect and not the process. Even if there is a procedural 
irregularity in the process of passing such order, if the order 
passed is a decree under law, no revision lies under Section 115 
of the Code in view of the specific bar under sub-Section (2) 
thereof. It is only appealable under Section 96 read with Order 
XLI of the Code. [Paras 14 and 15)
[340-A-D] 
3. The order passed by the trial court is a composite order 
on rejection of the plaint as there was no cause of action and 
dismissal of the suit as not maintainable on the ground of Res 
J11dicata. Both aspects are covered by the definition of decree 
nnder Section 2(2) of CPC and, therefore, the remedy is only 
appeal and not revision even if there is any irregularity in passing 
tlte orde1; [Para 16] [340-E-F] 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4543 
of2016 
From the Judgment and Order dated 14.08.2013 of the High Court 
of Patna in CR No. 783 of2010 
Gaurav Agrawal, Adv., for the Appellants. 
K. Y. Muthu Kumar, Ajay Kumar, Kundan Kumar Mishra, Advs., 
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for the Respondent. 
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[2016 J 2 S.C.R. 
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The Judgment of the Court was delivered by 
KURIAN, J.: 
I. Leave granted. 
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2. An Interlocutory Application filed in a pending suit for dismissal 
of the suit on the ground that the same is barred by Res Judica/a and 
that there is no cause of action, was allowed by the trial court before 
commencement of the trial. The plaintiff filed a· revision before the High 
Court of Judicature at Patna taking the position that no appeal is 
maintainable as the suit has been dismissed without framing an issue. 
3. The High Court, as per the impugned order dated 14.08.2013, 
took the view that the approach taken by the trial court was not proper; 
an issue should have been framed on maintainability and the same should 
have been tried, and thereafter only, the suit could have been dismissed, 
in case the court upheld the contentions of the defendant/applicant. In 
that view of the matter, the High Court held that the order passed by the 
trial court, dismissing the suit, was not appealable and the same was 
only revisable in exercise of the powers under Section l l 5 of The Civil· 
Procedure Code, 1908 (hereinafter referred to as 'Code'). Thus, 
aggrieved, the defendants are before this Court. 
4. Appellants are defendants in Title Suit No. 149 of2008 before 
the l" Sub Judge, Arrah, Bhojpur, in the State of Bihar. The suit was 
filed for a declaration that the Municipality survey Khatiyan entered in 
favour of
defendant No. l regarding the land mentioned in Schedule 'A' 
is absolutely wrong and untrue and is not binding the plaintiff. 
5. The defendants, by application dated 20.08.2009, prayed for 
framing a preliminary issue as to "whether the suit is maintainable as 
barred by Res Judicata and constructive Res Judicata". According to 
the appellants, the plaintiff having suffered an order in Title Suit No. 4 of 
l 971, the present Title Suit was not maintainable. It was also averred in 
the Application that: 
"5. That the survey of Khatiyan has not become final by the 
Municipality, and the plaintiff has no right to institute any suit against 
any entry made in it, hence, the present suit is not maintainable." 
6. The defendant/plaintiff filed his objections, and thereafter, the 
Application was taken up for consideration. After hearing both the sides, 
the trial court upheld the objection that the suit was barred by the principle 
of Res Judicata. On cause of action, it was held that:
RISHABH CHAND JAIN & ANOTHER v. GINESH CHANDRA 337 
JAIN [KURIAN, J.] 
"It is also clear from the perusal of the plaint that the plaintiff has 
instituted {hi-s suit for declaration of the Municipality Survey 
Khatiyan as null and void. The photo copy of the survey Khatiyan 
has been produced with the suit. It is clear from its perusal that 
this survey Khatiyan has not yet been finally published. Under 
these circumstances, no relief of declaration can be granted by 
the Civil Court for declaring the said survey as null and void. The 
suit can not be filed in the Civil Court prior to final publication of 
the survey Khatiyan. Thus, it is clear that the plaintiff has no 
cause of action to institute the present suit." 
And thus, the trial court dismissed the suit ... "being barred by 
the principle of Res Judicata and the lack of cause of action" 
as per order dated 03.08.2010. 
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-TT he plaintiff challenged the said order in Civil Revision No. 783 
of 2010 before the High Court of Judicature at Patna. 
8. The High Court, in the impugned order, has taken the view that 
for dismissal ofa suit, framing of issues is necessary whereas for rejection 
of a plaint, it is not and it can be done at any stage. It was further held 
that the order rejecting the plaint is appealable but dismissal of a suit, 
without framing an issue and before trial as not maintainable, is not 
appealable. To quote: 
"In absence of specific issue, the same does not come within the 
definition of
decree and the impugned order finally disposed of 
the case, so only remedy left in the case is filing revision." 
9. Heard learned Counsel appearing on both sides. 
10. Section 2 (2) of the Code defines 'decree' to mean: 
"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 
wntroversy 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. 
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Explanalion.·-A decree is preliminary when fu1ther 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;" 
11. Section 96 of the Code provides for appeals from original 
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decree: 
"'96. Appeal from original decree.-( I) Save where otherwise 
expressly provided in the body of this Code or by any other Jaw 
for the time being in force. an appeal shall lie from eve1y decree 
passed by any Cou1t exercising original jurisdiction the Court 
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authorized to hear appeals from the decisions of such Court. 
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(2) An appeal may lie from an original decree passed ex pane. 
(3) No appeal shall lie from a decree passed by the Comt with the 
consent of parties. 
(4) No appeal shall lie, except on a question of law, from a decree 
in any suit of the nature cognizable by Courts of Small Cause, 
when the amount or value of the subject-matter of the original 
suit does not exceed [ten thousand rupees]." 
12. Section 115 of the Code provides for revision; 
"115. Revision.-( I) The High Court may call for the record of 
any case \Vhich has been decided by any Court subordinate to 
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such High Court and in which no appeal lies thereto, and if such 
subordinate Comt appears-
( a) to have exercised a jurisdiction not vested in it by law, or 
(b) to have failed to exercise a jurisdiction so
vested, or 
(c) to have acted in the exercise of its jurisdiction illegally or 
with material irregularity, 
the High Court may make such order in the case as it thinks fit: 
Provided that the High Court shall not, under this section, vaiy or 
reverse any order made, or any order deciding an issue, in the 
course of a suit or other proceeding, except where the order, if it 
had been made in favour of the party applying for revision, would 
have finally disposed of the suit or other proceedings. 
(2) The High Court shall not, under this section, vary or reverse 
any decree or order against which an appeal lies either to the
RISHABH CHAND JAIN & ANOTHER v. GINESH CHANDRA 339 
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JAIN [KURIAN, J.] 
. High Court or to any Court subordinate thereto. 
(3) A revision shall not operate as a stay of suit orother proceeding 
before the, Court except where such suit or other proceeding is 
stayed by the High Court. 
Explanation.-ln this section, the expression "any case which has 
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been decided" includes any order made, or any order deciding an 
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issue in the course of a suit or other proceeding." 
13. Order XIV Rule I provides for framing of issues: 
"1. Framing of issues.- (I) Issues arise when a material 
proposition of fact or law is affirmed by the one party and denied 
by the other. 
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(2) Material propositions are those propositions of law or fact 
which a plaintiff must allege in order to show a right to sue or a 
defendant .must allege in order to constitute his defence. 
(3) Each material proposition affirmed by one party and denied 
by the other shall form the subject of a distinct issue. 
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(4) issues are of two kinds: 
(a) issues of fact, 
(b) issues of law. 
(5) At the first hearing of the suit the Court shall, after reading the 
plaint and the written statements, if any, and 1 [after examination 
under rule 2 of Order X and after hearing the parties or their 
pleaders], ascertain upon what material propositions of fact or of 
. Jaw the parties are at variance, and shall thereupon proceed to 
frame and record the issues on which the right decision of the 
case appears to depend. 
(6)
Nothing in this rule requires the Court to frame and record 
issues where the defendant at the first hearing of the suit makes 
no defence." 
14. In terms of Section 2(2) of the Code, in case, the court 
adjudicating the case, conclusively determines the rights of the parties 
with regard to any one or more or all of the matters in controversy in the 
suit, the requirement of decree is satisfied. Such determination can be 
preliminary or final. Rejection ofa plaint is deemed to be a decree under 
Section 2(2) of the Code. Only two orders are excluded-(i) any 
adjudication from which an appeal lies as an appeal from an order and 
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[2016] 2 S.C.R. 
(ii) any order of dismissal for default. Order XLlll of the Code has 
provided fr,r appeals from orders. The impugned order does not come 
under Order XLlll. The order has conclusively determined the rights of 
the parties with regard to one of the matters in controversy in the suit. 
viz .. Re,11· .Jzulicala. True. it is not an order passed on fra1ning an issue. 
But at the sa111e tin1e, there is adjudication on the controversy as to 
whether the suit is barred by ResJ11dica1a in the sense there is a judicial 
determination of the controversy after referring to the materials on record 
and after hearing both sides. 
15. The impugned order dismissing the suit on the ground of Re.-
.l1ulicata does not cease to be a decree on account of a procedural 
irregularity of 11011-fra111 ing an issue. The court ought to treat the decree 
as if the same has been passed after framing the issue and on adjudication 
thereat: in such circumstances. What is to be seen is the effect and not 
the process. Even if there is a procedural irregularity in the process of 
passing such order. ifthe order passed is a decree under law. no revision 
lies under Section 115 of the Code in view of the specific bar under sub-
Section (2) thereof. It is only appealable under Section 96 read with 
Order XLI of the Code. 
16. The order passed by the trial court is a composite order on 
rejection of the plaint as there is no cause of action and
dismissal of the 
suit as not maintainable on the ground of Res Judicalo. Both aspects 
are covered by the definition of decree under Section 2(2) of the Code 
and, therefore, the remedy is only appeal and not revision even ifthere is 
any irregularity in passing the order. 
17. The appeal is hence allowed. The impugned order is set aside. 
However, the respondent/plaintiffis granted liberty to file an appeal against 
the order dated 03.08.20 I 0 passed by the High Court. In case such an 
appeal is filed within six weeks from today. the same shall be treated to 
have been filed within time, in view of the facts and circumstances of 
this case. 
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18. The appeal is allowed as above. There shall be no order as to 
costs. 
Kalpana K. Tripathy 
Appeal alhHvcd. 
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