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2006 DIGILAW 1354 (JHR)

Sheikh Akbar v. Chairman, Coal India Ltd.

2006-11-23

DILIP KUMAR SINHA, M.Y.EQBAL

body2006
ORDER 1. Heard the parties. 2. This appeal purported to have been filed under Order XLIII, Rule 1(r), CPC is directed against the order dated 3.9.2003 passed by Sub-Judge No. 1, Deoghar by which he has rejected the suit being title (Declaration) Suit No. 147/2003. 3. The plaintiff-petitioner filed the aforementioned suit for recovery of Rs. 7,27,000/-. The Court below rejected the plaint under Order VII, Rule 11(d), CPC holding that the claim was barred by limitation. 4. The office gave a note regarding, maintainability of this Misc. appeal. A Bench of this Court, by order dated 20.5.2004, took the view that an appeal under Section 96, CPC will not lie and proper course is to file a Misc. appeal under Order XLIII, Rule 1 read with Section 151,CPC. Accordingly notices were issued to the respondents who appeared and raised objection with regard to maintainability of the appeal. The matter was again placed before a Bench of this Court and ultimately the matter was referred to Division Bench for deciding the question of maintainability of the appeal. The order dated 13.7.2006 passed by the learned Single Judge referring the matter to Division Bench reads as under: Mr. V. Shivnath, appearing for the respondents submitted that the order rejecting plaint under Order VII, Rule 11(D) of the Code of Civil Procedure (on the finding that the claim was time barred), amounts to a decree in view of AIR 1982 Pat 75 , against which appeal under Section 96 of the Code of Civil Procedure may lie and this miscellaneous appeal is not maintainable under Order XLIII of the CPC. Mr. A.K. Sahani, appearing for the appellant pointed out that a Bench of this Court by order dated 20.5.2004 held that this miscellaneous appeal has properly been filed and rejected the objection raised by the Stamp Reporter as baseless. Mr. V. Shivnath submitted that the said order dated 20.5.2004 was passed in the absence of the respondents-and, thus, the said objection could not be raised. The objection of Mr. Shivnath prima facie appears to be correct. In the circumstances, place this matter before the Honble the Acting Chief Justice for referring it to an appropriate Division Bench for deciding the question of maintainability of this appeal. 5. The objection of Mr. Shivnath prima facie appears to be correct. In the circumstances, place this matter before the Honble the Acting Chief Justice for referring it to an appropriate Division Bench for deciding the question of maintainability of this appeal. 5. Primafacie, we are of the view that an order rejecting plaint under Order VII, Rule 1(d), CPC is not appealable under Order XLIII of the Code of Civil Procedure, We have no doubt In our mind in holding that the order rejecting plaint under Order VIII, Rule 11, CPC is a decree. Section 2(2) of the Code of Civil Procedure defines a decree which reads as under: "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. 6. From bare reading of the aforesaid definition of the term "decree", it manifestly clear that it includes rejection of a plaint and determination of any question within Section 144 CPC. Order VII, Rule 11 of Code lays down the circumstances when a plaint is liable to be rejected. Order VII, Rule 11, CPC, reads as under: Rejection of Plaint-The plaint shall be rejected in the following cases: (a) where it does no disclose a cause of action; (b) Where the relief claimed is under valued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so; (c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamppaper within a time to be fixed by the Court, fails to do so; (d) Where the suit appears from the statement in the plaint to be barred by any law; (e) Where it is not filed in duplicate; (f) Where the plaintiff fails to comply with the provisions of Rule 9. 7. 7. From reading of the aforesaid provisions. It is clear that plaint shall be rejected where the Court finds that suit appears to be barred by any law. Such an order passed by the Court rejecting the plaint as barred by law of limitation shall be a decree which appealable under Section 96 of the Code of Civil Procedure. 8. In the instant case, the appellant has filed appeal under Order XLIII, Rule 1 of the Code of Civil Procedure which is not maintainable. This appeal is, accordingly, dismissed. Appeal dismissed.