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2015 DIGILAW 650 (CAL)

Uttam Chand Surana v. Prabir Guha

2015-08-04

DEBI PROSAD DEY, JYOTIRMAY BHATTACHARYA

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JUDGMENT : The plaintiffs are the appellants before us. An order of rejection of the plaint under Order 7, Rule 11 of the Code of Civil Procedure passed by the Learned Trial Judge was challenged in this appeal at the instance of the plaintiffs/appellants. 2. At the stage of hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure, the other Division Bench of this Hon’ble Court dismissed the appeal by holding that no legal issue is raised in this appeal. Hence, the appeal does not deserve any merit for admission. 3. Challenging the said judgment and/or order passed by the other Division Bench of this Hon’ble Court on 24th March, 2014, a Special Leave Petition was filed by the plaintiffs/appellants before the Hon’ble Supreme Court. The said Special Leave Petition being Civil Appeal No. 10472 of 2014 was ultimately disposed of by the Hon’ble Supreme Court on 21st November, 2014 by setting aside the order which was impugned in the said appeal and the appeal has been remitted back to the High Court for framing appropriate question of law and for deciding the said question in accordance with law. 4. Under such circumstances, when the matter was listed again before this Court for hearing, a question cropped up as to what will be the classification of the appeal meaning thereby as to whether such appeal should be registered as a Second Miscellaneous Appeal or a regular Second Appeal? Since the scope of consideration of the Second Miscellaneous Appeal is different from the scope of consideration of the Second Appeal, we feel that the dispute as to whether this appeal should be registered as a regular Second Appeal or a Second Miscellaneous Appeal should be decided first. 5. Accordingly we have decided to resolve this issue first. 6. We have already indicated above the nature of the order, which is impugned in this appeal. As a matter of fact an order of rejection of a plaint under Order 7, Rule 11 of the Code of Civil Procedure is under challenge in this appeal. 7. 5. Accordingly we have decided to resolve this issue first. 6. We have already indicated above the nature of the order, which is impugned in this appeal. As a matter of fact an order of rejection of a plaint under Order 7, Rule 11 of the Code of Civil Procedure is under challenge in this appeal. 7. Let us now consider as to whether such an order has the force of decree within the meaning of “decree” as defined in Section 2(2) of the Civil Procedure code or it will be construed as an order within the meaning of “order” as defined under Section 2(14) of the Civil Procedure Code. 8. Section 2(2) of the Code of Civil Procedure defines decree. It provides that “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 further provides that 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. 9. An explanation is also added to the said provision which says that a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final. “Order” has been defined in Section 2(14) of the Civil Procedure code which says that “order” means the formal expression of any decision of a Civil Court which is not a decree. 10. Thus, considering the definition of the “decree” and the “order”, we have no hesitation to hold that rejection of a plaint under Order 7, Rule 11 of the Code of Civil Procedure is a decree within the meaning of “decree” under the provision contained in Section 2(2) of the Code of Civil Procedure. Such an order cannot be constructed as “order” within the meaning of an order as it is defined in the Civil Procedure Code. 11. Such an order cannot be constructed as “order” within the meaning of an order as it is defined in the Civil Procedure Code. 11. Earlier an identical question came up for consideration before the other Division Bench of this Hon’ble Court in the case of Surajmal Jain v. Prabir Kumar Sett reported in 1980 (2) CLJ page 161 in the context of the dispute relating to the classification of an appeal arising out of an order passed under Order 21, Rule 103 of the Civil Procedure Code. The said Division Bench of this Hon’ble Court after considering various provisions of civil Procedure Code such as Order 21 Rules 97, 98, 100 & 103 and Section 2(2) thereof held that an order passed under Order 21, Rule 103 of the Civil Procedure Code will have the same force of a decree as Order 21, Rule 103 provides that an order passed thereunder would be regarded as a deemed decree. 12. Their Lordships held that the appeal which is directed against an order passed under Order 21, Rule 103 of the Code of Civil Procedure amounting to a deemed decree is different from an appeal which is directed against the decree within the meaning of “decree” as per Section 2(2) of Civil Procedure Code. Their Lordships thus held that an appeal against a deemed decree should be registered as a Miscellaneous Appeal. 13. While deciding the issue regarding the nomenclature of such an appeal which is directed against an order under Order 21, Rule 103 of the Code of Civil Procedure, the said Division Bench of this Hon’ble Court had no occasion to consider as to how an appeal which is directed against an order of rejection of plaint under Order 7, Rule 11 of the Code of Civil Procedure, will be classified. 14. Since the expression “decree” to some extent is different from the expression “deemed decreed”, we feel that the decision of the said Division Bench cannot be regarded as a direct authority on the present issue. 15. While considering such an issue, we have got a direct authority on this point. In an identical situation, a question came up for consideration as to whether an order of rejection of plaint can be assailed in a regular appeal or it can be challenged by way of revisional application under Section 115 of the Code of Civil Procedure. 16. While considering such an issue, we have got a direct authority on this point. In an identical situation, a question came up for consideration as to whether an order of rejection of plaint can be assailed in a regular appeal or it can be challenged by way of revisional application under Section 115 of the Code of Civil Procedure. 16. While considering such an issue, the Division Bench of this Hon’ble Court, after considering the nature of the order which is passed under Order 7, Rule 11 of the Code of Civil Procedure and the definition of “decree” as defined under Section 2(2) of the Code of Civil Procedure conclusively held in the case of Smt. Annapurna Dassi & Ors. v. Sarat Chandra Bhattacharjee & Ors. reported in 38 CWN page 1063 that when an order is passed under Order 7, Rule 11 of the Code of Civil Procedure and an appeal preferred therefrom is dismissed by the Learned First Appellate Court, such an order of the First Appellate Court is assailable before the High Court in Second Appeal. Their Lordships held that such an order is not assailable before this court under Section 115 of the Civil Procedure Code, as it stood in the Civil Procedure Code at the relevant time. Though the Civil Procedure Code has been amended subsequently changing the scope of revisional jurisdiction of this court under Section 115 of the Civil Procedure Code but still then when we find that an order of rejection of the plaint amounts to a decree within the meaning of “decree” as it is defined under Section 2(2) of the Civil Procedure Code, we by relying upon the said decision of the Division Bench of this Hon’ble Court in the case of Annapurna Dassi & Ors. v. Sarat Chandra Bhattacharje & Ors. (supra), hold that the present appeal should be classified as a regular Second appeal. 17. As a matter of fact, the instant appeal was filed as a Second Appeal by the appellants. But somehow or other the nomenclature of the said appeal was subsequently changed from Second appeal to a Second Miscellaneous Appeal. 18. We thus, direct that this appeal should be treated as regular Second Appeal. 19. The concerned department is directed to re-register the same as a regular Second Appeal. 20. But somehow or other the nomenclature of the said appeal was subsequently changed from Second appeal to a Second Miscellaneous Appeal. 18. We thus, direct that this appeal should be treated as regular Second Appeal. 19. The concerned department is directed to re-register the same as a regular Second Appeal. 20. Let this appeal be placed for hearing under the provisions of Order 41, Rule 11 of the Code of Civil Procedure after this appeal is registered as a Second Appeal. 21. Office is directed to complete the entire process within a week so that the matter can be placed for hearing under Order 41, Rule 11 of the Code of Civil Procedure in the light of the direction passed by the Hon’ble Supreme Court, immediately thereafter.