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2022 DIGILAW 379 (CAL)

Shyam Sundar Paul v. Sri. Goutam Poddar

2022-03-10

BISWAJIT BASU, SOUMEN SEN

body2022
JUDGMENT Biswajit Basu, J. - This is an application for restoration of the appeal being F.M.A. No. 1 of 2021 upon recalling of the order dated December 15, 2021 whereby the appeal was dismissed as misconceived. 2. Learned advocate for the appellant/petitioner submits that the instant appeal was initially filed in the Principal Bench of the High Court but transfer of it to this Circuit Bench completely skipped the notice of the learned advocate on record for the appellant, as a consequence thereof, the appellant could not be represented on December 15, 2021 resulting dismissal of the present appeal. 3. He further submits that the explanation appended to Order XLI Rule 17 of the Code of Civil Procedure puts a bar to the power of the appeal Court to dismiss an appeal on merit in the absence of the appellant/petitioner, since, dismissal of the appeal as misconceived amounts to dismissal of it on merits, in the absence of the appellant the appeal should not have been dismissed as such. 4. On the point of maintainability of the appeal, learned advocate for the appellant/petitioner submits that the learned Trial Judge disposed of the suit on a preliminary point of maintainability. The Appeal Court reversed the said order of the learned Trial Judge and directed trial of the suit on all points, such a direction of the Appeal Court below comes within the sweep of Order XLI Rule 23 of the Code, consequently, the said order is open to appeal under Order XLIII Rule 1(u) of the Code, to support his such contention he places reliance on the decision of the Hon'ble Supreme Court in the case of Liverpool & London S.P. & I Association Ltd. vs. M.V. Sea Success I and Another reported in (2004) 9 SCC 512 . He argues that nevertheless, an order passed under Order VII Rule 11 of the Code being in the nature of preliminary judgment, is open to appeal. He refers to the decision of the Hon'ble Supreme Court in the case of Jegannathan vs. Raju Sigamani and Anr. reported in (2012) 5 SCC 540 to contend that an order of remand is an appellable order. He refers to the decision of the Hon'ble Supreme Court in the case of Jegannathan vs. Raju Sigamani and Anr. reported in (2012) 5 SCC 540 to contend that an order of remand is an appellable order. On the merit of the application under Order VII Rule 11 of the Code, he places reliance on a decision of the Hon'ble Division Bench of our Court in the case of Rajendra Prasad Shewda vs. Kishori Debi Joshi & Ors. reported in (2009) 1 CLT 197. He concludes by submitting that the case of Amal Chandra Mondal vs. Anita Biswas & Anr. reported in (2006) 2 Cal LJ 180 has no manner of application in the facts and circumstances of the present case. Heard learned advocate for the appellant, perused the materials-on- record. 5. The Court of first instance, if disposes of a suit on a preliminary point, the provision of Order XLI Rule 23 of the Code enables the appellate Court to remand the case to the Court of first instance for determination of such suit on merits but in order to invoke the said provision of the Code, the suit is required to be disposed of on a preliminary point. The trial Court, by rejecting the plaint on any of the grounds under Order VII Rule 11 of the Code refuses to entertain the plaint of the suit only, such an order is not an order disposing the suit on preliminary point, therefore, in setting aside the said order and directing trial of the suit on merits, the appeal Court does not exercise the power under Order XLI Rule 23 of the Code. 6. In the present case, the learned Trial Judge rejected the plaint of the suit under Order VII Rule 11(d) of the Code, in the appeal from the said order, the appellate Court set aside the said order and directed trial of the suit on merit with the following observation: let the case record be sent on remand with a direction upon the learned court below to decide the suit after recording evidence adduced by both the parties in the suit. The Appeal Court below while directing the Trial Court to decide the suit after recording the evidence although has used the term remand but, in fact, it did not do so. The Appeal Court below while directing the Trial Court to decide the suit after recording the evidence although has used the term remand but, in fact, it did not do so. The observations of the learned Single Judge of the Madras High Court in the case of The Province of Madras vs. Laxmi Amma and Ors. reported in AIR 1945 Mad 430 [MANU/TN/0065/1944] at paragraph 2 are relevant to the present context, therefore, excerpts from the said paragraph of the said decision are quoted below:- ..2. ..This rule deals with two types of case : (1) where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and (it) where the appellate Court in reversing or setting aside a decree under appeal deems it necessary in the interests of justice to remand the case . In my opinion, the present case does not fall within either of these two categories. The suit was not disposed of on a preliminary point. The Court, by rejecting the plaint, refused to consider the suit. Although the learned District Judge said that he was remanding the appeal, he did not in fact do so, his order amounting to a direction to the trial Court to entertain the plaint and proceed with the suit.... 7. The learned Single Judge of the Lahore High Court in the case of Cotton Trading Syndicate Commission Agency and Ors. vs. Malawa Mal-Shiv Ram Das reported in AIR 1929 (Lah) 83 [MANU/LA/0225/1928] relying on a decision of the Hon'ble Division Bench of this Court in the case of Braja Lal Mitra & Ors. vs. Upendra Krishna Mitra & Ors. reported in 6 CLJ 214 held that an order of the appellate Court setting aside an order of the court of first instance rejecting a plaint and directing the trial Court to proceed with the trial of suit on merit is not an order of remand under Order XLI Rule 23 of the code, as such, is not appellable under Order XLIII Rule 1(u) of the Code. Same view was expressed by another learned Single Judge of the Lahore High Court in the case of Basheshar Nath Goel vs. Bidhi Chand and Ors. reported in AIR 1937 (Lah) 380 [MANU/LA/0332/1936] 8. Same view was expressed by another learned Single Judge of the Lahore High Court in the case of Basheshar Nath Goel vs. Bidhi Chand and Ors. reported in AIR 1937 (Lah) 380 [MANU/LA/0332/1936] 8. An order rejecting the plaint of a suit being a decree within the meaning of Section 2(2) of the Code is open to appeal under Section 96 of the Code but an order refusing to reject the plaint is not. The said order is neither a decree nor an appeal is provided against such order under Section 104 read with Order XLIII of the Code. If the issue of maintainability is decided against the plaintiff, the order is appellable but an order deciding the said issue in favour of the plaintiff is not so. We referred the decision of the Hon'ble Division Bench of this Court in the case reported in (2006) 2 Cal LJ 180 (supra) in our order dated December 15, 2021 as similar view was expressed in the said decision. 9. In the decision of the Hon'ble Supreme Court reported in (2004) 9 SCC 512 (supra) relied on by the learned advocate for the appellant/petitioner, it has been held that in the absence of any prohibition regarding maintainability of the appeal, the right of appeal which is provided under Clause 15 of the Letters Patent cannot be said to be restricted, as such, an order refusing to reject the plaint under Order VII Rule 11 of the Code being in the nature of preliminary judgment, is appellable. The present appeal is not an appeal under Clause 15 of the Letters Patent; therefore, the said judgment of the Hon'ble Supreme Court is misplaced in the facts and circumstances of the present case. 10. The decision of the Hon'ble Supreme Court reported in (2012) 5 SCC 540 (supra) relied on by the learned advocate for the appellant/petitioner is no pointer to the issue involved in the present case, as discussed above, the rejection of the plaint of a suit on any of the grounds mentioned under Order VII Rule 11 of the Code is not a decision on a preliminary point. The decision of the Hon'ble Division Bench of this Court in the case reported in (2009) 1 CLT 197 (supra) is regarding the merit of the application under Order VII Rule 11 of the Code filed by the defendants, of which we are not concerned in the present case. 11. The restriction contemplated in the explanation appended to Order XLI Rule 17 of the Code is no fetter to the power of the appellate Court to decide the maintainability of an appeal, particularly when, it is apparently not maintainable; we, therefore, are unable to accept the submission of the learned advocate for the appellant/petitioner that the said provision of the Code puts a restriction to the power of appeal Court even to decide the issue of maintainability of an appeal in the absence of the appellant. 12. Since we have heard the learned advocate for the appellant/petitioner on the issue of maintainability of the appeal itself, recalling of our order dated December 15, 2021 would be a mere formality. C.A.N. 1 of 2021 is, therefore, dismissed without any order as to costs. 13. Urgent Photostat copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities. I agree.