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2008 DIGILAW 294 (KAR)

Siddalingamma v. Gangamma

2008-06-16

V.JAGANNATHAN

body2008
JUDGMENT The question that is involved in this appeal is whether against the decision of the lower Appellate Court remanding the matter to the trial Court with a direction to return the plaint to the plaintiff for being presented before the proper Court, gives rise to second appeal being preferred under Section 100 of the C.P.C. or not. 2. The facts which have given rise to this question being raised, briefly stated, are to the effect that the appellant herein filed a suit for partition and separate possession of her 1/3rd share in the suit schedule property and the tiral Court after considering the pleadings of the parties and the evidence, decreed the suit of the plaintiff. The defendants preferred an appeal before the lower appellate Court questioning the said decision of the trial Court. The learned judge of the lower appellate Court after hearing the parties, came to the conclusion that the suit property was worth more than Rs. 7 lakhs and therefore the trial Court had no jurisdiction to try the suit and following the law laid down by the Apex Court in the case reported in AIR 1956 SC 388, the lower appellate Court allowed the appeal filed by the defendants and set aside the judgment and decree passed by the trial Court and remitted the matter to the trial Court with a direction to return the plaint to the plaintiff for proper presentation. It is this finding of the lower appellate Court that is called in question in this second appeal. 3. Sri. S. Sunil Datt Yadav, learned Counsel for the respondents, at the outset submitted that the appeal itself is not maintainable under Section 100 of the C.P.C. and the proper course to be adopted by the appellant is to file an appeal as if the appeal is from the order passed by the lower appellate Court under Order 7, Rule 10 of the C.P.C. and hence this second appeal is not maintainable. In support of the above submission, he referred to the provisions of the C.P.C., in particular Order 43, Rule 1(a), Order 7, Rule 10 and to the definition of decres as contained in Section 2 (2) of the C.P.C. Referring to the aforesaid provisions of C.P.C., it is submitted that the lower appellate Court had not rendred a decision on the merits of the case, but had only directed the trial Court to return the plaint for being presented to the proper Court by the plaintiff and as such, even though the lower appellate Court set aside the judgment and decree of the trial Court, the effect of the judgment and decree of the trial Court, the effect of the judgment of the trial Court is that the plaint was returned. Under the above circumstances, second appeal could not have been filed by the appellant. In support of the above submission, he placed reliance on a ruling reported in AIR 1967 Patna 388. 4. On the other hand, the learned Counsel for the appellant Shri Basavarajappa contended that the appeal is maintainable under Section 100 of the C.P.C. because, the lower appellate Court had set aside the judgment and decree of the trial Court and, therefore, the appellant need not take recourse to file the appeal in accordance with Order 43, Rule 1 of the C.P.C. The further submission made is that, as the lower appellate Court had returned the plaint, it is a case which is covered by the definition of ‘decree’ as contained in Section 2(2) of the C.P.C. 5. In view of the aforesaid submissions made, the point to be considered is whether the appeal ought to have been filed in accordance with Order 43 Rule 1 of the C.P.C. or the second appeal could be filed under Section 100 of the C.P.C. This takes us to the relevant provisions of the C.P.C. 6. Having regard to the fact that the lower appellate Court had ultimately directed that the plaint be returned to the plaintiff for being presented to the proper Court, it has to be held that the lower appellate Court did not go into the merits of the case, but only found that the trial Court had no jurisdiction to pass the judgment and decree in question. Therefore, the provisions of Order 7, Rule 10 of the C.P.C. become applicable. Therefore, the provisions of Order 7, Rule 10 of the C.P.C. become applicable. The said provision reads as under: “10. Return of plaint - (1) Subject to the provisions of rule 10A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted. Explanation. - For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this sub - rule.” 7. A careful reading of the Explanation to Rule 10 sub-clause (1) also makes it clear that the Court of appeal can order return of plaint only after setting aside the decree passed in a suit. Therefore, in the instant case, though the decree of the trial Court was set aside by the appellate Court, it was only to enable the plaint being presented in a proper Court. 8. Whether the order of the lower appellate Court for return of plaint can be considered as a decree is the next aspect to be considered and this requires us to keep in view the definition of ‘decree’ Section 2(2) of the C.P.C. defines ‘decree’ thus : “(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.” It is, therefore, to be observed that a decree shall also be deemed to include the rejection of a plaint, but does not include the return of the plaint and also it does not include any adjudication from which an appeal lies as an appeal from an order. Whether the judgment of the trial Court directing return of the plaint can be considered as an appealable order or not is the next question to be answered. Order 43 Rule 1 gives the answer. The said Order 43, Rule 1 sub-clause(a) is as under : “1. Whether the judgment of the trial Court directing return of the plaint can be considered as an appealable order or not is the next question to be answered. Order 43 Rule 1 gives the answer. The said Order 43, Rule 1 sub-clause(a) is as under : “1. Appeal from orders, - An appeal shall lie from the following orders under the provisions of Section 104, namely : (a) an order under Rule 10 of Order VII returning a plaint to be presented to the proper Court except where the procedure specified in Rule 10A of Order VII has been followed;” Hence, an order under Rule 10 of Order VII returning a plaint is, therefore, an order against which an appeal lies. 9. Thus, on a careful reading of the aforesaid provisions of the C.P.C. and applying them to the case on hand, it can be said that the judgment of the lower appellate Court directing the plaint to be returned to the proper Court will have to be construed as an order passed under Order 43 Rule 1(a) of the C.P.C. and, therefore, an appeal against such an order lies not under Section 100 of the C.P.C. In other words, a second appeal under Section 100 of the C.P.C. is permissible only from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. Therefore, what gives jurisdiction under Section 100 of the C.P.C. is that the appeal necessarily will have to be against a “decree” passed in appeal by the subordinate Courts. In view of the judgment of the lower appellate Court by its very nature of the order passed does not bring it within the definition of a “decree” as defined in Section 2(2) of the C.P.C. I am of the considered opinion that second appeal will not lie against the impugned judgment of the lower appellate Court. 10. For the foregoing reasons, second appeal is held to be not maintainable, but the appellant is at liberty to file an appropriate appeal. At this stage, the learned Counsel for the appellant submitted that he be given the liberty to convert this R.S.A. into M.F.A. Liberty sought for is granted. The appeal is disposed of in the above terms. 10. For the foregoing reasons, second appeal is held to be not maintainable, but the appellant is at liberty to file an appropriate appeal. At this stage, the learned Counsel for the appellant submitted that he be given the liberty to convert this R.S.A. into M.F.A. Liberty sought for is granted. The appeal is disposed of in the above terms. So far as the interim order passed earlier is concerned, in view of non-maintainability of the R.S.A. itself, the said interim order will not survive.