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2000 DIGILAW 474 (KAR)

Davantex v. Indian Bank, Mandipet Branch

2000-07-11

H.N.TILHARI

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ORDER Harinath Tilhari, J.—This is a revision under Section 115 of the Code of Civil Procedure, from the judgment and order dated 3rd of April, 2000, passed by the Additional Civil Judge (Senior Division), Davangere, on I.A. No. II, filed in original suit number O.S. 45 of 1990, whereby the Appellants has prayed that the Court exercising powers under Order 11, Rule 21 of the Code of Civil Procedure may be pleased to reject the plaint, and dismiss the suit for the reasons set out in the affidavit, which I.A. II has been dismissed by the Lower Court. 2. Feeling aggrieved from the order the applicants have come up in this revision. 3. I do not express any view on the merits or demerits in the contentions raised in the appeal or in the application under Order 11, Rule 21, his order dated 6/7.8.1999. That order of respondent No. 3 was challenged by the Petitioner in Writ Petition No. 207 of 2000. That writ petition came to be disposed of by this Court by its order dated 14.1.2000 directing the Petitioner to submit her appeal-petition against the said impugned order of R3, along with the necessary documents etc., within thirty days to R2-the Director of Department of Agricultural Produce, Bangalore, for his final decision in terms of Regulation-8 of the said Scheme. Accordingly, the appeal-petition against the said order of R3 was made to R2 by the Petitioner. Thereupon, the impugned order vide Annexure-A dated 27/28.6.2000 came to be passed by R2 affirming the said order dated 26.7.1999 made by rejecting her application. 4. It means, among the ingredients for invoking jurisdiction under Section 115 Code of Civil Procedure, the second condition that has to be established is, that order is not appealable to this Court has not been established. In my opinion, the order passed under Order 11, Rule 21, either dismissing the suit, or dismissing the application, and refusing to dismiss the suit is appealable under Order 43, Rule 1(f), the provision uses the expression 'an order under Order 11, Rule 21', so it, itself includes both types of orders, namely order allowing the application and dismissing the suit thereon as well as order rejecting the application, and refusing to dismiss. When I so opine, I find support for my view from the decisions of the Andhra Pradesh High Court and the Calcutta High Court, in the case of Ashreddy vs. Venkat Reddy, AIR 1958 AP 450 (DB) and Jnanada Prosad Mukherji Vs. G.M. Falkner, AIR 1930 Cal 426 The Division Bench of the Calcutta High Court in the case of Jnanada Prosad Mukherji Vs. G.M. Falkner, AIR 1930 Cal 426, has opined and laid down that order passed under Order 11, Rule 21 be it one allowing the application under Order 11, Rule 21 or rejecting it is appealable. The Division Bench of Calcutta High Court further observe and lay it down as under: The learned Judge seems to think that the only order that can be passed under Order 11, Rule 21, is an order striking out the defence; and that an order refusing to strike it out is not an order under that rule. This is not the way in which the wording of Order 43 with reference to other matters has been understood by Courts. Clause (f) Order 43, Rule 1, only says"an order under Order 11, Rule 21". It does not specify the nature of the order which is made appealable under that rule. In allowing an appeal from an order either refusing or admitting, Order 43 has specifically mentioned such order when it was intended to give the right of appeal from one sort of order and not from the other. It has been further laid as under: It has been held, and the question is so well settled that it is beyond controversy, that an appeal also lies from an order refusing to grant an injunction or appoint a receiver. It is useless to pursue this matter further for on a plain reading of the several clauses of Order 43, it must be held that where the legislature has not specified sort of order which is made appealable an appeal will lie from an order made under that provision of the Code or from an order refusing to make an order under it. In this view of the matter, in my opinion, the order impugned is appealable. 5. Learned Counsel for the applicant pointed out on query being made that the value of the suit for which the application was made, is more than one lakh. 6. In this view of the matter, in my opinion, the order impugned is appealable. 5. Learned Counsel for the applicant pointed out on query being made that the value of the suit for which the application was made, is more than one lakh. 6. In this view of the matter, the order is appealable to this Court, and therefore when the appeal lies from this order under Order 43, Rule 1(f), this Court has no power under Section 115 Code of Civil Procedure to call for the records. As such, revision has to be dismissed on the ground that remedy of appeal is available, and not maintainable, and as such the revision petition is dismissed.