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2014 DIGILAW 2781 (MAD)

Pandi Ambalam v. Velayutha Konar

2014-08-21

V.M.VELUMANI

body2014
Judgment : This civil revision petition has been filed to set aside the order, dated 25.03.2014, made in I.A.No.759 of 2013 in O.S.No.279 of 2013, on the file of District Munsif-cum-Judicial Magistrate Court, Melur. 2. The petitioner is the plaintiff, whereas the respondent is the first defendant in the suit in O.S.No.279 of 2013 on the file of District Munsif-cum-Judicial Magistrate Court, Melur. 3. The petitioner filed the suit for declaration and injunction restraining the defendants from interfering with his possession in the suit property. The respondent/first defendant filed an application I.A.No.759 of 2013, for rejection of plaint. The learned Judge allowed the said application and by the order, dated 04.04.2014, the plaint was rejected. Against the said order, the petitioner has filed the above C.R.P.Sr.(MD) No.21839 of 2014. 4. The Registry has raised an objection that the said civil revision petition is not maintainable and only appeal is maintainable. 5. The learned counsel for the petitioner argued that as per Order 43 (1) C.P.C., the order allowing an application rejecting the plaint is not appealable. 6. I have considered the said submissions. 7. This issue has already been considered by this Court on an earlier occasion and the Judgment reported in 2002 (3) CTC 477 [K.S. Geetha Vs. Stanleybuck and another], this Court held that the order allowing an application to reject the plaint is appealable and the revision is maintainable only against the order dismissing the application. In the said Judgment, in paragraph Nos.9, 12 and 13, it has been held as follows :- "9. Order VII Rule 11 of Code of Civil Procedure deals with rejection of plaint. Once the plaint is rejected, then obviously nothing is pending before the Court. That order is formal expression of an adjudication, which so far as regards the Court expressing it, conclusively determines the rights of the parties. In fact, Section 2 of the Code of Civil Procedure which defines the term decree specifically states that the decree shall be deemed to include rejection of the plaint. Section 96 of the Code deals with appeal from original decrees. The claim of the respondents is that the order rejecting plaint being the decree by the trial Court, the only remedy, if plaintiff is aggrieved, is by way of filing an appeal and not by filing revision petition. 12. Section 96 of the Code deals with appeal from original decrees. The claim of the respondents is that the order rejecting plaint being the decree by the trial Court, the only remedy, if plaintiff is aggrieved, is by way of filing an appeal and not by filing revision petition. 12. Of course, the learned counsel for the petitioner/plaintiff referred to two rulings of a learned Single Judge of this Court reported in K. Thakshinamoorthy and another v. State Bank of India, Arasaradi Branch, 2001 (I) CTC 594 and Dr. Ravichander v. Karunakaran and Others, 2000 (II) MLJ 136 and would endeavour to convince this Court that a revision will also lie. The learned counsel is not right in his submission since the first case is one where an application filed by the defendant was dismissed and against which a revision was filed. Certainly when an application is dismissed and the suit is pending before the trial Court, the question of filing of an appeal would not arise. So far as the second case is concerned, it could be seen from a perusal of Judgment that in that case the Court rejected the plaint only in so far as item No.1 of 'B' schedule. When a revision is filed, the Court ruled that the trial Court cannot dissect the pleadings into several parts and the plaint cannot be partially rejected and only in these circumstances the Court ruled that when the Court passed an order without jurisdiction and which is patently illegal, there is nothing wrong in invoking supervisory power of the Court under Section 115 of Code of Civil Procedure and rectify the illegality committed by it. Hence this ruling also may not come to the rescue of the petitioner. In this view of the matter, the preliminary objection raised by the respondents/defendant is upheld and the revision petition is dismissed as not maintainable. 13. In view of the fact that this Court is dismissing the revision petition for the reasons stated supra, the necessity to take up the exercise of considering other issues really do not arise." 8. In view of the well settled law, the revision is not maintainable. The Registry is directed to return the above C.R.P.Sr. to the learned counsel for the petitioner and the same to be filed before the proper forum. In view of the well settled law, the revision is not maintainable. The Registry is directed to return the above C.R.P.Sr. to the learned counsel for the petitioner and the same to be filed before the proper forum. If an appeal is filed against the order allowing the application to reject the plaint, the appellate Court shall exclude the days from the date of filing of C.R.P.Sr. to the date of return of papers to the learned counsel for the petitioner while calculating the delay in filing the appeal.