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2013 DIGILAW 398 (PNJ)

Brij Chandrika v. Pawan Sher Singh

2013-03-26

DAYA CHAUDHARY

body2013
JUDGMENT Mrs. Daya Chaudhary, J.: - This order shall dispose of both Civil Revision No.422 of 2011 as well as Civil Revision No.423 of 2011. However, for the sake of convenience, the facts are being extracted from Civil Revision No.422 of 2011. 2. The present revision petition has been filed for setting aside the Order dated 16.02.2010 passed by the Additional Civil Judge (Senior Division), Gurgaon. 3. Briefly, the facts of the case are that the petitioner-Smt. Brij Chandrika, who is mother of the respondent, filed a suit for permanent injunction for grant of decree of permanent injunction restraining the respondent from interfering into the possession of petitioner over the suit land and also for restraining him from ploughing and cultivating the suit land forcibly other than in due course of law. As per averment made in the suit, the property was purchased by one Raghu Sher Singh, husband of the petitioner and father of the respondent vide registered lease deed dated 10.04.1975. The application under Order 39 Rules 1 and 2 CPC for grant of ad-interim injunction was also filed by the petitioner, which was allowed by the trial Court vide Order dated 15.06.1999. The respondent filed an appeal against the order dated 15.06.1999 passed by the trial Court and the judgment of the trial Court was reversed by the Additional District Judge, Gurgaon vide Order dated 16.10.1999. Thereafter, the petitioner filed a Civil Revision No.6212 of 1999 before this Court which was allowed on 25.09.2001 and the order passed by the trial Court was restored. During pendency of the suit, an application under Order 7 Rule 11 of the CPC for rejection of plaint was filed on the ground that the petitioner has already transferred her leasehold rights in favour of her son Udey Sher Singh on 19.07.2004 and as such, she was not having interest in the suit as the suit had become infructuous and cannot be proceeded. The trial Court allowed the application and dismissed the suit vide order dated 16.02.2010, which is subject matter of challenge in the present revision petition. 4. Civil Revision No.423 of 2011 has been filed by Uday Sher Singh, the son of the petitioner in Civil Revision No.422 of 2011. An application was moved during pendency of the suit under Order 1 Rule 10 CPC for impleading him as party which was allowed and the suit was dismissed. 4. Civil Revision No.423 of 2011 has been filed by Uday Sher Singh, the son of the petitioner in Civil Revision No.422 of 2011. An application was moved during pendency of the suit under Order 1 Rule 10 CPC for impleading him as party which was allowed and the suit was dismissed. The application moved by son of the petitioner in Civil Revision No.422 of 2011 for impleadment was not opposed. After impleadment of Udey Sher Singh, the application for rejection of plaint was filed after a gap of about four months. 5. Notice of motion was issued in both the revision petitions. In response to the notice of motion, learned counsel for the respondent appeared and raised a preliminary objection that no revision is maintainable. Learned counsel for the respondent also relies upon the judgments of this Court in cases Sudharsh Kumar Ahuja vs R.P. Joshi 1985(1) RCR (Rent) 484; Vineet Handa vs M/s OZO Media Estate Limited 2011(1) CivCC 98 ; Kashmiri Devi vs Aziz-u-Din 1978 PLJ 17; Bhagmal vs Surji alias Surji Kaur 2011(1) CivCC 542 and Harbans Kaur vs Jagir Singh 2000(2) RCR (Civil) 77. 6. Learned counsel for the petitioner is not in a position to controvert the submission made by learned counsel for the respondent as nothing has been shown to the Court as to how the revision petition is not maintainable. The issue with regard to maintainability of revision petition has been dealt with in the judgments cited by learned counsel for the respondent. In accordance to the ratio of all said judgments, the only remedy available is to challenge the order passed in application under Order 7 Rule 11 of the CPC is to file an appeal under Order 43 Rule 1(a) of the Code as the order returning the plaint does not adjudicate any of the rights of the parties and the order rejecting the plaint could be passed by the Court in its inherent jurisdiction and is appealable by virtue of Order 43 Rule 1(a) of the Code. The observations made by this Court in case Sudharsh Kumar Ahuja (supra) are reproduced as under :- “5. The observations made by this Court in case Sudharsh Kumar Ahuja (supra) are reproduced as under :- “5. The ratio of the decision in Souri Varghese’s case (supra) is to the effect that where against the order of the Court calling upon the plaintiff to pay additional Court-fee, the plaintiff files a revision petition, but before it was admitted, the plaint itself was rejected for plaintiff’s default for payment of Court-fee, the order of rejection of plaint being a decree, the proper remedy for plaintiff was an appeal and not revision. In the said case two separate orders were passed by the Court; one allowing the plaintiff to pay the deficit Court-fee, and the other, rejecting the plaint for non-compliance of the said order. Revision petition was filed against the first order. During the pendency of the revision petition, the second order, as mentioned above, was passed and the plaint was rejected. It was in these circumstances held therein that where a plaint is rejected under Order 61 Rule 11 of the Code for default to pay additional Court-fee even before the admission of a revision petition filed against order calling for payment of addition Court-fee the revision petition was not maintainable. Similarly, in Satyanarayancharyulu’s case (supra), it was held that where an order directing payment of additional Court-fee is not complied with and it is followed by an order rejecting the plaint, a revision petition is not maintainable against the latter. The proper remedy is only by way of an appeal against the order rejecting plaint which is a decree under Section 2(2) and is appealable as such. Once an application order in the form of an order rejecting the plaint is passed, a revision petition cannot also be filed against the earlier order demanding addition Court-fee. Such a petition is against the well-established principles of procedural law. To the same effect was the law laid down in Wajid Ali’s case and Kamalamma’s case (supra). I am in respectful agreement with the ratio of the Full Bench decision of the Madras High Court in Satyanarayancharyulu’s case (supra) and the ratio of the Full Bench judgment of the Kerala High Court in Souri Vargjese’s case (supra). To the same effect was the law laid down in Wajid Ali’s case and Kamalamma’s case (supra). I am in respectful agreement with the ratio of the Full Bench decision of the Madras High Court in Satyanarayancharyulu’s case (supra) and the ratio of the Full Bench judgment of the Kerala High Court in Souri Vargjese’s case (supra). Since the plaint itself has been rejected by the impugned order by the trial Court in the present case, which is admittedly an appealable one, the only remedy open to the plaintiff is to file an appeal against the said order and in view of sub-section (2) to Section 115 of the Code, the revision petition as such is not maintainable. On principle also, it would not have made any difference if an order rejecting the application for seeking amendment of the plaint was decided by a separate order and then the plaint was rejected by another order. In that situation also since the plaint would have been rejected, the plaintiff could file an appeal only against the said order and in that appeal he could challenge the order declining the prayer of amendment of the plaint in view of the provisions of Section 105 of the Code.” 7. In this view of the matter and the preliminary objection raised on behalf of the respondent, the revision petition is liable to be dismissed as not maintainable. However, the petitioner will be at liberty to seek his remedy in accordance with law. 8. Consequently, these revision petitions are dismissed as not maintainable with no order as to costs. ----------------------