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2017 DIGILAW 73 (GAU)

Swapan Kumar Paul v. State of Assam

2017-01-17

PRASANTA KUMAR DEKA

body2017
JUDGMENT AND ORDER : Prasanta Kumar Deka, J. Heard Mr. T. Roy, learned counsel, appearing on behalf of the appellants. Also heard Mr. S. Das, learned counsel, appearing on behalf of the respondent Nos. 1 and 2, Mr. SK Ghosh, learned counsel appearing on behalf of the respondent Nos. 5, 6 and 7 and Mr. M.K. Sarma, learned counsel appearing on behalf of the respondent No. 4. 2. This appeal is against the order dated 09.06.2005, passed by the learned Civil Judge, (Senior Division) Karimganj in Title Appeal No. 75/2003 whereby the said appellate court dismissed the appeal affirming the order dated 30.06.2003, passed by the learned Civil Judge Junior Division, Karimganj in Title Suit No. 186/1987. 3. The subject matter of the Title Appeal No. 75/2003 is the order passed under Order 7, Rule 10 of the CPC thereby returning the plaint filed by the plaintiff as the same was beyond the pecuniary jurisdiction of the said trial court of the learned Civil Judge, (Junior Division), Karimganj which at that relevant point of time was Rs. 25,000.00. The said appeal registered as Title Appeal No. 75/2003 was filed under Order 43, Rule 1 (a) of the CPC, which is reproduced herein below:- "Order 43, Rule 1 (a): 1. Appeal from Orders-. An appeal shall lie from the following orders under the provisions of section 104 namely: (a) an order under rule 10 of the Order 7 returning a plaint to be presented to the proper Court [except where the procedure specified in rule 10A of Order 7 has been followed]; ……………….." 4. On a query to Mr. Roy, learned counsel appearing on behalf of the appellants with regard to the maintainability of the present second appeal, he submits before this court that as the order impugned arises from an order passed under Order 7, Rule 10 as such the present second appeal is maintainable. 5. Mr. Ghosh, learned counsel, appearing on behalf of the respondents aforesaid, submits that the Order 43 emanates from Section 104 of the CPC and as per the provision of Section 104 (2) of the CPC, no appeal lie from any order passed in appeal under Section 104. Thus, the finality of the order passed in the appeal has been prescribed by Section 104(2) of the CPC. Thus, the finality of the order passed in the appeal has been prescribed by Section 104(2) of the CPC. The appeal preferred before the learned Civil Judge, (Senior Division), Karimganj was an appeal under Section 104 CPC and the same having attained finality, so Mr. Gosh submits that this second appeal that too under Section 100 of the CPC is not at all maintainable. 6. This court after hearing the learned counsel appearing on behalf of the parties to this appeal, finds force in the submission of Mr. Ghosh and accordingly dismissed the second appeal without entering into any merit of the present second appeal. However, the appellants shall be at liberty to file proper petition if so advised, in the proper forum of law. 7. In view of the above, this second appeal is not maintainable inherently and as such the certified copy of the impugned order may be returned back to the appellants substituting the same by way of photo copy in the present appeal. 8. Send back the LCR. No costs.