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2021 DIGILAW 439 (TS)

Rai Shetty Kanakaiah v. V. Venkateshwar Rao

2021-12-31

P.NAVEEN RAO

body2021
ORDER : P. Naveen Rao, J. 1. Heard Sri G. Simhadri, learned Counsel for the petitioner, and Sri J. Venkateshwara Reddy, learned Counsel for respondent No. 3. 2. Petitioner herein is the plaintiff and respondents are the defendants. Plaintiff filed OS No. 432 of 2014 on the file of the II Additional Junior Civil Judge at Warangal seeking to grant decree of permanent injunction restraining the defendants, their agents, workmen, employees and persons who represented on their behalf from interfering with the peaceful possession and enjoyment over the suit schedule property. The suit schedule property is 426 Sq.yards of land in Survey No. 205/D/E of Waddepally Village, Hanamkonda, Warangal District. The respondents/defendants filed JA No. 281 of 2021 under Order VII Rule 11 of Code of Civil Procedure (for short, the CPC) praying to reject the plaint. 3. Having regards to the order, which is proposed to be passed, the Court is not dwelling deep into the inter se dispute. Suffice to note that on considering the respective submissions, the Trial Court, by order dated 04.10.2021, allowed the said IA with costs and rejected the plaint. Challenging the said order and decree, the petitioner/plaintiff filed this revision. 4. When the revision was presented before the Registry, the Registry raised objection on maintainability of civil revision petition holding that against the order rejecting the plaint, appeal alone would lie under Section 96 CPC and the revision is not maintainable. 5. Learned Counsel for the petitioner replied to the office objection as under: "(1) Re-submission : The CRPSR No. 36417 of 2021 is filed against order dated 04.10.2021 in IA No. 281 of 2021 in OS No. 432 of 2014 in which respondents/defendants have filed an application under Order VII Rule 11 CPC and the same was allowed against the same CRP. (2) Now the CRPSR No. 36417 of 2021 is returned stating that how the CRP is maintainable stating that against the order passed under Order VII Rule 11 of CPC. (3) Under Order XLHI CPC an appeal shall lie from the following order under provision of Section 104 remedy. (a) An order under Rule 10 of Order VII returning a plaint to be presented to the proper aspect where the procedure specified in Rule 10-A of Order VII has been followed than only appeal lies. (3) Under Order XLHI CPC an appeal shall lie from the following order under provision of Section 104 remedy. (a) An order under Rule 10 of Order VII returning a plaint to be presented to the proper aspect where the procedure specified in Rule 10-A of Order VII has been followed than only appeal lies. However, the present CRPSR No. 36417 of 2021 is filed against order passed under Order VII Rule 11 CPC against the order passed under Order VII Rule 11 CPC. Appeal is not maintainable. Therefore, CRP is only remedy. Accordingly, in accordance with Order XLUI CPC, if your authority not satisfied, post CRP for orders of the Court." 6. Not satisfied with the explanation offered by the petitioner, revision is listed before this Court for orders of the Court. 7. Learned Counsel for the petitioner submits that the order under challenge is an order made in an application filed under Order VII Rule 11 CPC. In view of the provision in Order XLIII Rule 1 CPC, no appeal shall lie and therefore the revision is maintainable. In support of his contention, learned Counsel for the petitioner placed reliance on a decision of the Hon'ble Supreme Court dated 09.08.2021 in Srihari Hanumandas Totla v. Hemant Vithal Kamat and others, CA No. 4665 of 2021, 2021 (5) ALD 98 (SC). 8. Per contra, learned Counsel for the respondents submits that though the Trial Court considered the application filed under Order VII Rule 11 CPC, but having accepted preliminary objection raised by the respondents on maintainability of the suit, the Trial Court rejected the plaint. Once plaint is rejected decree ensues and it is a decree as defined under Section 2(2) of CPC. Against the judgment and decree, remedy is only in the form of an appeal under Section 96 of CPC and revision is not maintainable. In support of his contention, learned Counsel placed reliance on the reference answered by the Division Bench in Molugu Ram Reddy and others v. Molugu Vittal Reddy and others, 2011 (5) ALD 522 (FB). 9. I have carefully considered respective submissions and precedent decisions. 10. To resolve conflict of opinions expressed in various decisions, the matter was referred to Full Bench in Molugu Ram Reddy's case (supra). 9. I have carefully considered respective submissions and precedent decisions. 10. To resolve conflict of opinions expressed in various decisions, the matter was referred to Full Bench in Molugu Ram Reddy's case (supra). The reference reads as under: "...whether an appeal against order as civil miscellaneous appeal under Section 104 read with Order XLIII Rule 1 of Code of Civil Procedure, 1908 (CPC, for brevity) or a regular appeal under Section 96 of the CPC, is maintainable against the judgment/order passed under Rule 11 of Order VII of the CPC." 11. On elaborate consideration of the precedent decisions, provision under Order VII Rule 11, Order XLIII and Section 96 of CPC, the Full Bench answered the reference as under: "24. In the result for the above reasons, the reference is answered as follows: On the true construction of Section 2(2), 2(9) and 2(14) and Sections 96, 104 and 105 of the CPC, the conclusion is irresistible that a judgment rejecting a plaint is "decree" and is appealable under Section 96. A miscellaneous appeal against an order rejecting the plaint would not lie. 25. There is a much consensus of judicial opinion that supports this conclusion. A plaintiff, who is aggrieved by rejection of the plaint for any of the reasons as contemplated under Order VII Rule 11(a) to (f), is entitled to file a regular appeal under Section 96 and a miscellaneous appeal under Section 104 read with Order XLIII Rule 1 is barred." 12. Though not exactly on the same facts, in Sayyed Ayaz Ali v. Prakash G. Goyal and others, CA Nos. 2401 and 2402 of 2021, 2021 (4) ALD 222 (SC), decided on 20.07.2021, one of the issues raised was, against the decision of the Trial Court in an application filed under Order VII Rule 11 CPC whether a writ petition under Article 227 of the Constitution of India is maintainable. 13. By referring to the definition of 'decree' in the Section 2(2) CPC, the Hon'ble Supreme Court held as under: "The definition of "decree" in Section 2(2) "shall be deemed to include the rejection of a plaint". Hence, the order of the Trial Court rejecting the plaint is subject to a first appeal under Section 96 of the CPC. The writ petition filed by the appellant was liable to be rejected on that ground. Hence, the order of the Trial Court rejecting the plaint is subject to a first appeal under Section 96 of the CPC. The writ petition filed by the appellant was liable to be rejected on that ground. We therefore affirm the judgment of the High Court rejecting the writ petition, though for the above reason leave it open to the appellant to pursue the remedy available in law." (Emphasis supplied) 14. Srihari Hanumandas's case (supra), was a case of dismissal of application filed under Order VII Rule 11 CPC to reject the plaint. An order dismissing the application filed under Order VII Rule 11 CPC is not a 'decree' as defined in Section 2(2) of CPC and therefore it is not an appealable order. The Hon'ble Supreme Court was considering the reasons assigned in rejecting the application to reject the plaint and affirmed the decision of the Trial Court as well as the High Court. Therefore, the issue decided by the Hon'ble Supreme Court is Srihari Hanumandas's case (supra), is not the same as raised in this revision. The said decision does not come to the rescue of the petitioner. 15. Having regard to the plain reading of Section 2(2) of CPC and precedent decisions on remedy against rejection of plaint, office objection is sustained and the revision is dismissed. However, this order does not come in the way of petitioner working out his remedies as available to him. Miscellaneous petitions, if any, pending in this revision shall stand closed.