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2015 DIGILAW 964 (CAL)

Ajit Kumar Saha v. Sampa Saha

2015-12-11

DEBI PROSAD DEY

body2015
JUDGMENT : Debi Prosad Dey, J. This application under Section 227 of the Constitution of India is directed against order No.230 dated 09.03.2015 passed by learned Judge, Small Causes Court, Sealdah in title suit No.117 of 1991 wherein and whereby learned Judge rejected the plant of the suit under Order 7 Rule 11(D)of Code of Civil Procedure. 2. Pursuant to the direction given by Hon’ble Justice Harish Tandon the petitioner has served notice upon the opposite parties as well as upon the learned Advocate representing them in the trial Court. The affidavit of service has been filed in the Court and the same be kept with the record. 3. Learned Advocate Subrata Ray appearing on behalf of the petitioner contended that learned Judge has erroneously quoted the sections of Arbitration and Conciliation Act of 1996 instead of the Arbitration and Conciliation Act of 1940 and thereby completely misdirected himself in deciding the application under Section 20 of Arbitration and Conciliation Act of 1940. It is further submitted that learned Judge erroneously quoted the sections of 1996 Act and thereby under a wrong impression rejected the plaint of the petitioner on the ground that learned Judge is not at all competent to decide the suit since the Small Causes Court is not entitled to deal with such matter. 4. The petitioner/plaintiff has filed this application under Article 227 of the Constitution of India challenging the said order of learned trial Judge. 5. The term decree has been defined under Section 2(2) of the Civil Procedure Code which may be reproduced below for the sake of convenience. “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. Explanation. --- 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” 6. Explanation. --- 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” 6. It is apparent from the above mentioned definition of the decree that the order of rejection of a plaint comes within the purview of deem decree and the said order becomes appealable under Section 96 of the Code of Civil Procedure. 7. That goes to show that the order impugned being appealable, ought to have been agitated in appellate forum in terms of Section 96 of the Code of Civil Procedure. 8. The petitioner has chosen a wrong forum to agitate the legality and validity of the order impugned. This court cannot look into the legality or propriety of the order impugned by exercising the jurisdiction under Article 227 of the Constitution of India since the order impugned being deemed decree is appealable under the provisions of Code of Civil Procedure. Accordingly the application under Article 227 of the Constitution of India is rejected. 9. Learned Advocate for the petitioner is permitted to withdraw the certified copy of the order by replacing the same by a Photostat copy thereof.