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2017 DIGILAW 993 (JK)

Mohd. Kaseer Khan v. Faiz Mohd. Khan

2017-11-10

SANJEEV KUMAR

body2017
JUDGMENT : 1. The petitioner has invoked the revisional jurisdiction of this Court vested in this Court by virtue of the provisions of Section 115 of the Code of Civil Procedure to assail the order impugned dated 12.03.2016 passed by the learned Munsiff, Mendhar in file No.34/Civil, whereby the Court of learned Munsiff, Mendhar has dismissed the suit of the petitioner being not maintainable. 2. Shorn of unnecessary details, the brief facts of the case are that the petitioner has filed a suit for decree of specific performance of contract of sale dated 26.02.1988 as also for a decree of permanent prohibitory injunction for restraining the respondents from causing any sort of interference or disturbance with the possession of the petitioner or dispossessing him from the possession of the suit land. The aforesaid suit was contested by the respondents by filing written statement. 3. The trial Court, on the basis of the pleadings of the parties, vide order dated 30.04.2015 framed as many as six issues out of which two issues, i.e., issue No.4 and 5 were treated as preliminary issues. For facility of reference, issue Nos. 4 and 5, framed by the trial Court, may be reproduced as under:- 4. Whether suit is not maintainable in its present form”.....(OPD) 5. Whether suit is time barred”........(OPD). 4. The aforesaid order, however, has not been called in question by the petitioner by way of any proceeding. It appears that the arguments on the preliminary issues were heard by the Court below and vide judgment impugned, learned Court below dismissed the suit of the petitioner being not maintainable, primarily on the ground that the suit for specific performance of contract would not lie unless the contract sought to be enforced is a concluded contract. 5. The petitioner has challenged this finding of the learned Court below as also dismissal of his suit primarily on the ground that issue No.4 was a mixed question of fact and law. Therefore, in terms of Order-14, Rule-2 CPC, the same could not have been tried as a preliminary issue. As contended by the learned counsel for the petitioner whether contract sought to be enforced was a concluded contract or not was an issue of fact and law and the same should have been proved or disproved only in the trial. Therefore, in terms of Order-14, Rule-2 CPC, the same could not have been tried as a preliminary issue. As contended by the learned counsel for the petitioner whether contract sought to be enforced was a concluded contract or not was an issue of fact and law and the same should have been proved or disproved only in the trial. He further submits that besides, praying for a decree for specific performance the petitioner has also claimed relief of permanent prohibitory injunction restraining the respondents from interfering in his peaceful possession, which the petitioner claimed to have obtained pursuant to the contract of sale and for consideration. Learned counsel for the petitioner relied upon a judgment of this Court passed in CIA No.16/2012 (Mohd. Shafi Bhat v. Dhan Raj Sehgal and another) dated 01.01.2013. 6. Per contra, learned counsel for the respondents, besides meeting the arguments of learned counsel for the petitioner on merits, submits that the revision petition under Section 115 CPC is not maintainable for the simple reason that the order impugned by virtue of which the learned Court below dismissed the suit of the petitioner as not maintainable is a judgment and decree in terms of Section 2(2) of the Code of Civil Procedure and therefore, the same was appealable before the learned District Judge. 7. Heard learned counsel for the parties and perused the record. 8. Section 2(2) of the Code of Civil Procedure defines the degree in the following manner:- 2. Definitions In this Act, unless there is anything repugnant in the subject or context,- (1) .. (2) 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 party preliminary and partly final. 9. 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 party preliminary and partly final. 9. From the perusal of Section 2(2), which defines the decree as final adjudication of the lis on merits, which includes even rejection of plaint under Order-7 Rule-11, it is abundantly clear that the order/judgment impugned is a decree in the eye of law and therefore, appealable under Section 96 of the Code of Civil Procedure. As rightly averred by the petitioner in this petition that the order/judgment impugned is not an appealable order in terms of Order-43 of the Code of Civil Procedure but the petitioner has failed to appreciate that the order/judgment impugned is decree in the eye of law as defined in Section 2(2) CPC and therefore, appealable under Section 96 CPC. 10. That as the order impugned being a decree is appealable under Section 96 of the Code of Civil Procedure and therefore, in view of the bar created by Section 115(2) of the Code of Civil Procedure, which was inserted by Chapter XI of 1983, the revision petition would not be maintainable. For facility of reference, Section 115(2) CPC is reproduced hereunder:- The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. 11. That being the position, revisional jurisdiction under Section 115 CPC, which is invoked by the petitioner in the instant petition would not be available. Learned trial Court while dismissing the suit of the petitioner has also in the concluding lines specifically directed preparation of the decree, which otherwise is also mandate of law. The petitioner has not been able to convincingly demonstrate that the dismissal of suit may be on preliminary issue of maintainability is not a decree and that the revision under Section 115 CPC before this Court would be maintainable. The judgment relied upon by the learned counsel for the petitioner is not applicable to the facts of this case. 12. Viewed thus, the revision petition is not maintainable and the same is accordingly, Dismissed. The judgment relied upon by the learned counsel for the petitioner is not applicable to the facts of this case. 12. Viewed thus, the revision petition is not maintainable and the same is accordingly, Dismissed. The petitioner, however, shall be at liberty to avail of the remedy of appeal provided under the Code of Civil Procedure and nothing said herein above shall be taken as an expression of opinion on merits of the case by this Court.