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2008 DIGILAW 864 (MAD)

S. Manoharan v. T. Mayakkannan

2008-03-07

R.SUDHAKAR

body2008
Judgment :- The plaintiff has filed the revision petition challenging the order dated 28.08.2007 made in I.A.No.266 of 2007 in O.S.No.128 of 2005, on the file of the Additional District Judge, Fast Track Court, No.2, Madurai. 2. The brief facts of the case of the revision petitioner are as follows: The revision petitioner filed the suit praying for decree: 1.By declaring one of the defendants is a real owner/landlord of the suit “A” Schedule building, entitled to receive the rent from the plaintiff and in consequence to restrain the defendants from in any manner evicting the plaintiff without determining the ownership of the property. 2. Direct the defendants to pay the costs of this action. 3. Such and further relives as this Honourable court may deem fit and proper in the circumstance of the case. It is specifically pleaded by the revision petitioner/plaintiff that he is willing to pay the rent to the rightful owner to be determined by the Court viz. first defendant or second defendant. The suit, therefore, was filed. A written statement was filed by the first respondent/Second Defendant denying the plea in the plaint. The first respondent/defendant has also filed I.A.No.266 of 2007 under Order VII Rule 11(d) read with Order XXXV Rule 5 and Section 151 of C.P.C. to reject the plaint contending that the suit is barred by law. A counter was filed by the revision petitioner/plaintiff. On contest the Additional District Judge, Fast Track Court No.2, Madurai, for the reasons stated in the order allowed the application and rejected the plaint and the suit. Aggrieved thereby, the Civil Revision Petition is filed and is before the Court unnumbered. The matter is before the Court for maintainability on an objection raised by the registry. The first respondent/second defendant on notice appeared through the counsel Shri.Ramachandran. 3. The learned counsel for the petitioner relied upon the decision of this Court in Hindustan Petroleum Corporation Limited v. C.M.Hariraj reported in 2002(1) CTC 742 and submitted that the revision under Article 227 of the Constitution of India is maintainable as against the order passed under Order 7 Rule 11 of C.P.C. 4. 3. The learned counsel for the petitioner relied upon the decision of this Court in Hindustan Petroleum Corporation Limited v. C.M.Hariraj reported in 2002(1) CTC 742 and submitted that the revision under Article 227 of the Constitution of India is maintainable as against the order passed under Order 7 Rule 11 of C.P.C. 4. On going through the said decision reported in 2002(1) CTC 742 , it is apparent that the High Court in exercise of its power under Article 227 of the Constitution interfered with the decision of the District Munsif Court on the ground that the trial Courts order rejecting the plaint is an error apparent on the face of the record. The High Court found fault with the order of the District Munsif going into factual aspects without even calling upon the defendant to appear and state his defence. The Court held that the case did not fall within the parameters of Order 7 Rule 11 of C.P.C. The most important fact that weighed in the mind of the Court is the rejection of the plaint by the Court below without giving notice to the opposite party. Therefore, it held that the order of District Munsif Court is not sustainable in Law. The reason for the High Court to resort to Article 227 is stated in paragraph 15 of the decision and it reads as under: "15. The power under Article 227 is an extraordinary power, and it requires to be exercised sparingly and with extreme caution. It is a power of superintendence reserved for this Court and is subject to its discretion and it cannot be claimed as of right by any party. By now, it has been settled by pronouncements of the highest Court in the land as to when this Court could properly resort to and exercise the powers under Article 227. It is a power of superintendence reserved for this Court and is subject to its discretion and it cannot be claimed as of right by any party. By now, it has been settled by pronouncements of the highest Court in the land as to when this Court could properly resort to and exercise the powers under Article 227. The well accepted contingencies and features to warrant the exercise of such powers are: (i) Lack of jurisdiction, erroneous assumption of jurisdiction or excess of jurisdiction or refusal to exercise jurisdiction; (ii) Grave dereliction of duty or flagrant violation of law or error of law apparent on the face of the record as distinguished from a mere mistake of law or an erroneous decision of law; (iii) Violation of the principles of natural justice; (iv) Perverse finding founded on no material whatsoever, and (v) Arbitrary or capricious exercise of authority or discretion." Hence, the Court exercised its extraordinary powers under Article 227 of the Constitution of India and interfered with the perverse order of the Court below in that case. 5. On the contrary the learned counsel for the first respondent/2nd defendant relied on the following decisions to state that the order rejecting the plaint under Order 7 Rule 11 of C.P.C. is a decree and an appeal is the proper remedy. (1) Shamsher Singh v. Rajinder Prashad reported in (1973) 2 Supreme Court Cases 524 which held as follows. “In the present case the plaint was rejected under Order 7, Rule 11 of the C.P.C. Such an order amounts to a decree under Section 2(2) and there is a right of appeal open to the plaintiff. Furthermore, in a case in which this Court has granted special leave the question whether an appeal lies or not does not arise. Even otherwise a second appeal would lie under Section 100 of the C.P.C. on the ground that the decision of the first Appellate Court on the interpretation of Section 7(iv)(c) is a question of law. There is thus no merit in the preliminary objection.” (2) In Satyanarayanacharlu v. Ramalingam reported in 1951 II MLJ 74 the Full Bench presided over by Rajamannar, CJ (as he then was) held as follows. “The Revision petition before us is against the order, dated 24th March, 1947, rejecting the plaint. There is thus no merit in the preliminary objection.” (2) In Satyanarayanacharlu v. Ramalingam reported in 1951 II MLJ 74 the Full Bench presided over by Rajamannar, CJ (as he then was) held as follows. “The Revision petition before us is against the order, dated 24th March, 1947, rejecting the plaint. Under Section 2(2), Civil Procedure Code, an order rejecting a plaint shall be deemed to be a decree. It was therefore open to the petitioners to file a regular appeal against that order. As an appeal was competent, it follows that the Revision Petition is not maintainable and must therefore be dismissed on this ground.” In the present case, the suit is numbered and defendant filed the application for rejection of plaint. The objection raised by the first respondent/second defendant is that there is a specific bar under Order 35 Rule 5 of C.P.C. Such objection was considered by the Court below, which held that the provisions of Order 7 Rule 11(d) is attracted and the suit was rejected accordingly. 6. On going through the order under challenge it is evident that a reasoned order has been passed applying the provisions of law. It is an order on merits on contest. The plaintiff if aggrieved can file an appeal against such order, as it amounts to a decree in terms of Section 2(2) of the Civil Procedure Code. The decision of the Supreme Court and the Full Bench of this Court applies to the facts of the present case. The revision petitioner has not made out a case for invoking the extraordinary power of this Court conferred by Article 227 of the Constitution of India. 7. One other decision is relied on by the learned counsel for the revision petitioner is Dr. Ravichander v. Karunakaran reported in (2000) II M.L.J.136. In that case partial rejection of the plaint was ordered and therefore it was interfered by this Court under Section 115 of C.P.C. and it is not the case in the present case. 8. In view of the decision of the Apex Court and the Full Bench decision of this Court, as against the order passed under Order 7 Rule 11, which is a decree in terms of Section 2(2), an appeal alone will lie and not this petition filed under Article 227 of the Constitution of India. 8. In view of the decision of the Apex Court and the Full Bench decision of this Court, as against the order passed under Order 7 Rule 11, which is a decree in terms of Section 2(2), an appeal alone will lie and not this petition filed under Article 227 of the Constitution of India. This Court will refrain from exercising its powers under Article 227 in case of this nature. 9. Accordingly, the Civil Revision Petition is rejected. However, as prayed for by the counsel for revision petitioner liberty is given to the revision petitioner/plaintiff to contest the same in accordance with law. The counsel for the revision petitioner sought for the return of the original order passed by the Court below for the purpose of filing an appeal. Hence, the registry is directed to return the same on acknowledgement. No costs.